Cornyn Votes ‘No’ On Kagan

Today, I voted against the nomination of Elena Kagan to be Associate Justice of the U.S. Supreme Court. Below is the full text of my remarks, as prepared for delivery during today’s Senate Judiciary Committee meeting:

I am voting "no" on the nomination of Solicitor General Elena Kagan.

The votes of this Committee on nominations to the U.S. Supreme Court are among the most consequential votes we cast, because these are lifetime appointments.

Each Senator must carefully study the nominee’s views and reach a decision as to whether to endorse that nominee for a seat on the High Court.

In my view, that decision must be based on a standard of excellence. To be confirmed, a nominee must establish that she would adhere to a proper judicial philosophy. The nominee must establish through her testimony, through her judicial and non-judicial writing, and through her experience, that she would exercise the judicial power of a Supreme Court justice with a deep understanding of both judicial restraint and the need to enforce our written Constitution.

Elena Kagan falls short of that standard.

Solicitor General Kagan’s testimony before the Judiciary Committee did not assure me that she agrees with the traditional understanding of the proper role of a judge.

Judges should strictly interpret the written Constitution, which means both enforcing written limitations on the scope of government power, such as the Second Amendment and the Commerce Clause, as well as not inventing new rights or imposing their own policy views on the American people.

Ms. Kagan’s testimony about her judicial philosophy was vague and open to multiple interpretations.

In her written responses following the hearings, for example, Solicitor General Kagan indicated that she would decide cases based on her "constitutional values." But she acknowledged that her constitutional values can "point in different directions," and claimed that she would "exercise prudence and judgment in resolving the tension between them."

In voting on a Supreme Court nominee, I think we need more certainty than that that the nominee would exercise "prudence and judgment."

Solicitor General Kagan also testified that the Constitution is written in "general terms" that enable the courts to change the law in response to new conditions and new circumstances – changes that she testified occur "all the time."

But Solicitor General Kagan did not tell us how to know when circumstances have changed to justify a change in the law. I suppose that is another question that would be a matter of her prudence and judgment.

I was also troubled by her testimony in specific areas of law.

For example, Solicitor General Kagan was unable to articulate limits on the federal Commerce Clause power. She recognized that the Supreme Court used to impose such limits. But she recalled, with apparent approval, how the Supreme Court had then changed the law and no longer imposed such restrictions because “the old jurisprudence really wasn’t working.”

I assume this is another example of how she believes "new conditions and new circumstances" justified a change in the law – in this case, gutting the foundation of the federal government as a government of limited power.

I was also troubled by Solicitor General Kagan’s testimony on the Second Amendment.

She recognized that the Supreme Court’s precedents in Heller and McDonald v. City of Chicago were existing law. She also referred to those cases as "settled law." But her testimony made clear that ‘settled law’ has no particular meaning. “Settled law” just means the law until a new majority comes along to "unsettle" these decisions by overruling them.

We saw the same trick with Justice Sotomayor’s testimony on the Second Amendment. Last year, she testified that Heller was "settled law." But last month, she joined a dissenting opinion in McDonald urging it to be overturned.

The Second Amendment is too important to rest on such an empty promise.

Finally, I am troubled by Solicitor General Kagan’s testimony on military recruiting during her time as Dean of Harvard Law School. Her refusal to allow the military to recruit on campus just like any other employer reflects an effort to stigmatize the military. It suggests a nominee who has values that are out of step with those of the American people.

Every Supreme Court nominee bears the burden of proof of establishing they deserve the trust of the American people for a life appointment to the high court. In my view, Elena Kagan has not satisfied that burden of proof.

For these reasons, I will oppose her nomination.