Senator Cornyn’s Opening Statement during the Elena Kagan Nomination Hearing

I made the following opening statement during the committee’s hearing on the nomination of Elena Kagan to be an Associate Justice of the U.S. Supreme Court. Below is the full text of his remarks, as prepared for delivery:

Solicitor General Kagan, let me join in welcoming you to these hearings. In the last five years, this committee has met four times to consider a new Supreme Court nomination. Given our recent hearings, I think it’s vital to recall the core principles that should guide this Committee in carrying out its constitutional duty to provide advice and consent on Supreme Court nominations.

There are two basic visions of the role of judges in America, including the Supreme Court. In the traditional vision, the courts enforce the written Constitution. They enforce the constitutional guarantees that the Framers wrote into the text of the Constitution. Under this traditional vision, a court, including the Supreme Court, has a limited – some have called it, a modest role–albeit important. No court of law has the authority to invent new rights just because a judge thinks it’s a good idea.

That’s important because the power to make new laws belongs to the people, not the judges, not even the Supreme Court of the United States. When the Supreme Court creates new rights, the Justices take away the power of the people to govern themselves through their elected representatives. That’s not how our democracy is supposed to work.

Of course, that doesn’t mean the meaning of the Constitution must remain fixed. The Constitution itself tells us how to change it: Article Five offers two different ways the Constitution can be amended. First, Congress can propose amendments that the States can then approve. Second, Congress can call for a constitutional convention to propose amendments. Either way, the ultimate power to change the Constitution rests with the people, not the courts.

That’s the traditional vision. We can contrast that traditional vision with the activist vision. Under the activist vision, the Justices on the Supreme Court should feel free to change the Constitution when they see a problem that they want to solve.

According to the activist view, the Constitution is a so-called living document. It’s a living document because the judges change it when they want to without requiring consent from the American people.

This activist vision takes the power of the people to make the law and change the law – and gives that power to the judiciary who make the rules for the rest of us. This stands in stark contrast to the founders vision, perhaps best expressed in Federalist number 78, that the judiciary would be the “least dangerous branch” to the political rights in the Constitution because, in Hamilton’s memorable words, ‘[t]he judiciary . . . has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment.’

Unfortunately, some Justices on the Supreme Court today still embrace the activists’ role. We saw it just last month in Graham v. Florida, a 5-4 decision overturning the judgment of the Florida legislature that allowed a life sentence for robberies. Three Justices -- Stevens, Ginsburg, and Sotomayor – explained that their interpretation of the Constitution could change year-to-year and “will never stop” changing.

Sometimes judicial activists create new rights – and sometimes they actively undermine the rights in our Constitution. For example, we can see the different approaches to constitutional interpretation in this morning's landmark 5-4 decision on gun rights, McDonald v. City of Chicago. The five Justices who voted to apply the Second Amendment to the Chicago gun ordinance relied on history and precedent. On the other hand, the four Justices who voted not to apply the Second Amendment instead relied heavily on public policy arguments.

The question raised by every Supreme Court nomination is whether the nominee believes in the traditional vision or the activist vision. Does the nominee believe that the courts should make policy like Congress, even though it is not accountable to the people via elections? Will the nominee enforce the written Constitution and not invent new rights? Or will the nominee see it as her job to change the Constitution to better match her policy preferences?

Solicitor General Kagan, because you have never been a judge, what we do know about you begins, and largely ends, with your resume. We know you were a law clerk to two federal judges, and we know you served in the Clinton Administration as an advisor on many hot-button political questions, including abortion, gun rights, and affirmative action.

We also know that you have spoken about your judicial heroes. One hero is Justice Thurgood Marshall, for whom you served a law clerk. Thurgood Marshall, of course, was a famous lawyer for, among other cases, having won the landmark civil rights case Brown v. Board of Education. But from his self-described judicial philosophy and his performance on the bench, it is clear that Justice Marshall was a judicial activist as I have described that phrase earlier. Thurgood Marshall described his judicial philosophy as ‘do what you think is right and let the law catch up.’

Solicitor General Kagan, we know President has the right to nominate whoever he wishes. It is noteworthy, however, that among his nominees, President Obama has chosen several nominees who are clearly outside the judicial mainstream. One pending nominee bent the rules to try to keep a confessed serial killer from the death penalty. Another pending nominee has argued that there is a constitutional right to welfare payments. A third nominee argued that federal judges should internationalize our law, matching it to views abroad. These are not mainstream positions. These, in my view, are disqualifying positions.

One challenge of this hearing is that even nominees that have expressly rejected the activist view before this committee – call it a confirmation conversion - have changed their tune after their confirmation. Last year Justice Sotomayor came before this Committee and pledged allegiance to the traditional view. She testified that ‘Judges can't rely on what's in their heart. They don't determine the law. The job of a judge is to apply the law.’ But in her first term on the Court, just finished today, Justice Sotomayor, she has voted with the liberal bloc of the court – which unabashedly embraces an activist judicial philosophy -- about 90% of the time.

You have written in a 1995 law review article, that ‘the critical inquiry’ of judicial confirmation hearings must be ‘the perspective [the nominee] would add’ and ‘the direction in which she would move the institution.’ I agree. It is important in these hearings to find out whether you would move the Supreme Court in a traditional or activist direction.

The Constitution’s protections such as federalism, the Takings Clause, and the Second Amendment right to keep and bear arms are just a few obvious areas of inquiry. Solicitor General Kagan, the burden of proof is on you. I hope you can persuade

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