WASHINGTON – U.S. Senator Orrin Hatch delivered the following statement today before the Senate Judiciary Committee on the nomination of Elena Kagan to the Supreme Court:
“Thank you, Mr. Chairman. I want to welcome you back to the Judiciary Committee, Ms. Kagan. Something tells me this is likely your last confirmation hearing. As America’s founders designed it, the Senate’s role of advice and consent is a check on the President’s power to appoint. Fulfilling that role requires us to evaluate a nominee’s qualifications for the particular position to which she has been nominated. Qualifications for judicial service include both legal experience and judicial philosophy. While legal experience summarizes the past, judicial philosophy describes how a nominee will approach judging in the future. My primary goal in this confirmation process is to get the best picture I can of Ms. Kagan’s judicial philosophy, primarily from her record but also from this hearing. I have to make my decision whether to support her nomination on the basis of evidence, not blind faith.
“I have never considered the lack of judicial experience to be an automatic disqualifier for a judicial nominee. Approximately one-third of the 111 men and women who have served on the Supreme Court had no previous judicial experience. What they did have, however, was an average of more than 20 years of private practice experience. In other words, Supreme Court nominees have had experience behind the bench as a judge, before the bench as a lawyer, or both.
“Ms. Kagan worked for two years in a law firm, the rest of her career in academia and politics. As the Washington Post described it, she brings experience ‘in the political circus that often defines Washington.’ One of my Democratic colleagues on this committee recently said that Ms. Kagan’s strongest qualifications for the Supreme Court are her experience crafting policy and her ability to build consensus. The value of such experience depends on whether you view the Supreme Court as a political circus or view its role as crafting policy.
“I believe that the most important qualification for judicial service is a nominee’s judicial philosophy, or her approach to interpreting and applying the law to decide cases. This is what judges do, but different judges do it in radically different ways. Our liberty, however, requires limits on government, and that includes limits on judges. Chief Justice Marshall wrote in Marbury v. Madison that America’s founders intended the Constitution to govern the judicial branch as much as the legislative branch. Unfortunately, many judges today do not see it that way but believe that they may govern the Constitution.
“The Senate, and the American people, need to know which kind of Justice Ms. Kagan would be. Will the Constitution control her or will she try to control the Constitution? Does she believe that the words of the Constitution and statutes can be separated from their meaning, so that the people and their elected representatives put words on the page but judges may determine what those words mean? Does she believe it is valid for judges to mold and steer the law to achieve certain social ends? Does she believe that a judge’s personal experiences and values may be the most important element in her decisions? Does she believe that courts exist to protect certain interests? Does she believe that judges may control the Constitution by changing its meaning? Does she believe that judges may change the meaning of statutes in order to meet what judges believe are new social objectives?
“These are just some of the questions that go to the heart of a nominee’s judicial philosophy. I want to clarify, as best I can, what kind of Justice Ms. Kagan would be. To do that, I have to examine her entire record. As in previous hearings, there will no doubt be some tension during this hearing between what Senators want to know and what Ms. Kagan is willing to tell us. Unlike previous hearings, however, Ms. Kagan has already outlined quite clearly what she believes Supreme Court nominees should be willing to talk about in a hearing like this. Without this information, Ms. Kagan has written, the Senate ‘becomes incapable of either properly evaluating nominees or appropriately educating the public.’
“Ms. Kagan identified the critical inquiry about a Supreme Court nominee as ‘the votes she would cast, the perspective she would add, and the direction in which she would move the institution….But the bottom-line issue in the appointments process must concern the kinds of judicial decisions that will serve the country and, correlatively, the effect the nominee will have on the Court’s decisions. If that is too results oriented…so be it.’
“Ms. Kagan outlined that approach, which she argued is necessary for Supreme Court confirmation hearings to be more than vacuity and farce, in a law journal article when she was a tenured law professor after working for this committee on a Supreme Court confirmation. She was not a student writing a blog about some hypothetical topic that she knew nothing about. I am confident that Senators will give Ms. Kagan many opportunities in the next few days to provide the information and insight that she has argued is critical for the Senate properly to make a decision on her confirmation.
“This is a critical decision, and it is about more than just one person. Our decision will affect liberty itself. George Washington said this in his farewell address: ‘The basis of our political systems is the right of the people to make and alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all.’ The people’s right to make and alter the Constitution means nothing if the people choose the Constitution’s words but judges choose what those words mean. A judge with that much power would effectively take an oath to support and defend not the Constitution, but herself. I hope that this hearing will help me further understand what kind of Justice Ms. Kagan would be.
“Thank you, Mr. Chairman.”