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Senate Proceeding on Aug 5th, 2010 :: 4:33:30 to 4:52:55
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John Cornyn

4:33:26 to 4:33:32( Edit History Discussion )

John Cornyn: yo like it or not. i thank the chair and would

John Cornyn

4:33:30 to 4:52:55( Edit History Discussion )
Speech By: John Cornyn

John Cornyn

4:34:04 to 4:34:24( Edit History Discussion )

John Cornyn: yield the floor. mr. cornyn: mr. president? the presiding office senator from texas is recognized. mr. president. i want to address the nomination of solicitor general kagan to serve on the united states supreme court. earlier this week, i discussed my opposition to the nomination but at that

John Cornyn

4:34:25 to 4:34:45( Edit History Discussion )

John Cornyn: into any depth about my concerns with regard to her participation in the military recruiting policy that banned the united states military from the office of career service says at harvard law school. and while this incident has been discussed a lot, i think it's very important to establish for the record exactly what happened. i believe a due respect for the

John Cornyn

4:34:46 to 4:35:06( Edit History Discussion )

John Cornyn: men and women of our military and the gravity of this debate demands a full review of the facts behind what elena kagan did as dean of the harvard law school to exclude and stigmatize the united states military. harvard law school adopted an antidiscrimination policy in

John Cornyn

4:35:07 to 4:35:27( Edit History Discussion )

John Cornyn: 1979. this policy states that any employer that wished to use the office of career services at the law school had to sign a statement affirming that it does not discriminate on various bases, including sexual orientation. the military, not just because of its policy but because of the

John Cornyn

4:35:28 to 4:35:48( Edit History Discussion )

John Cornyn: policy of the united states congress, the law that w passed, the military could not sign this statement because of the don't askon't tell policy adopted during the clinton administration. when in 1993 a democrat congress and the clinton administration changed the military's outright ban on gays in the military to

John Cornyn

4:35:49 to 4:36:09( Edit History Discussion )

John Cornyn: adopt this don't ask/don't tell policy, harvard took the position that the military was still not in compliance with its antidiscrimination policy. as a result of harvard's policy, from 1979-2002, the united states military was barred from

John Cornyn

4:36:10 to 4:36:31( Edit History Discussion )

John Cornyn: recruiting individuals at the harvard law school office of career services, where everyone else was -- who was recruiting on campus was allowed to conduct interviews and recruit potential candidates. while this bar on the services

John Cornyn

4:36:32 to 4:36:53( Edit History Discussion )

John Cornyn: of the office of career services was, in effect, harvard law school, the veterans association essentially took the place of the office of career services and established an off-campus interview forum for law students interested in serving their country in the united states military. so because they were banned from the office of career services, they -- the military had to look

John Cornyn

4:36:54 to 4:37:14( Edit History Discussion )

John Cornyn: for an alternative venue or forum provided by the harvard law school veterans association in order to conduct those interviews. but again? very important happened. in 1995, congress enacted another law popularly known as the solomon amendment.

John Cornyn

4:37:15 to 4:37:35( Edit History Discussion )

John Cornyn: now, the solomon amendment said, you cannot receive federal funds if you're an educational educational institution if you prohibit or in effect prohibit military recruiting on your campus. in other words, they could have continued their policy of discrimination against the military but they would have

John Cornyn

4:37:36 to 4:37:57( Edit History Discussion )

John Cornyn: been denied federal funds under the plain wording of the solomon amendment passed in 1995. the second of defense under the solomon amendment has to make a finding that the school is not offering access to military recruiters that is -- quote -- "equal in quality and scope to the access that the school

John Cornyn

4:37:58 to 4:38:20( Edit History Discussion )

John Cornyn: provides other employers." then in 2002 -- that was 1995, the solomon amendment was passed. but in 2002, the secretary of defense of the united states found that harvard's exclusion of military recruiters from the office of career services was not equal access. in response to this federal law

John Cornyn

4:38:21 to 4:38:41( Edit History Discussion )

John Cornyn: and the finding by the secretary of defense, miss kagan -- actually, her predecessor, robert clarke, essentially capitulated and then gave the military access to the office of career services in 2002. so dean robert clarke, dean

John Cornyn

4:38:42 to 4:39:02( Edit History Discussion )

John Cornyn: kagan's predecessor, rather than be denied federal funds to harvard by violating the solomon amendment and denying access to military recruiters at the office of career services, decided in 2002 to change harvard's policy. thus, when miss kagan became dean of the law school in the

John Cornyn

4:39:03 to 4:39:25( Edit History Discussion )

John Cornyn: spring of 2004, the mill -- spring of 2003, the military had full access to the office of career services to recruit interested candidates for military service. and so for awhile, dean kagan maintained the military's access to the office of career services in compliance with the solomon amendment.

John Cornyn

4:39:26 to 4:39:46( Edit History Discussion )

John Cornyn: but it's clear that dean kagan didn't like that because she voiced her political opposition to the don't ask/don't tell policy, in other words a law enacted by congress and to which the department of defense was accountable and for enforcing it. so she sent an e-mail toll of

John Cornyn

4:39:47 to 4:40:07( Edit History Discussion )

John Cornyn: harvard's law sdents saying that she -- quote -- "an soared the don't ask - abhorred the don't ask/don't tell policy and she considered it a moral injustice of the first order." in january 2004, dean kagan joined 53 other members of the harvard law faculty in filing a friend of the court brief supporting a challenge to the

John Cornyn

4:40:08 to 4:40:28( Edit History Discussion )

John Cornyn: solomon amendment in the third circuit court of appeals. so even though she maintained access for awhile inherited that poli under her predecessor, in 2004, when a lawsuit was filed to challenge the solomon amendment, dean kagan and other harvard law school faculty

John Cornyn

4:40:29 to 4:40:49( Edit History Discussion )

John Cornyn: joined a friend of the court brief to try to strike down the solomon amendment. in november of 2004, a split panel on the third circuit court of appeals actually held that solomon amendment was reasonably likely to be unconstitutional and sent the case back to the district court will instructions to issue an

John Cornyn

4:40:50 to 4:41:11( Edit History Discussion )

John Cornyn: injunction halting the solomon amendment's enforcement. now, this is very important because the third circuit is one of our circuit courts of appeals in the united states but it is not the united states supreme court. that, i mean when it makes a decision, its decision only applies to the territory or that part of the unite states that's within the third circuit.

John Cornyn

4:41:34 to 4:41:55( Edit History Discussion )

John Cornyn: the harvard law school policy to once again bar the military from using the services of the office of career services. in other words, she was not compelled to do so by law but exercising her discretion as dean, she chose to reinstate thisolicy of barring military recruiters from the office of career services. then in january of 2005, the

John Cornyn

4:41:56 to 4:42:16( Edit History Discussion )

John Cornyn: third circuit issued an order staying its enforcement pending a decision by the united states supreme court. after this, of course, the third circuit ruling did not even have any effect even in the third circuit, much less in the jurisdiction of -- in the circuit with the jurisdiction over harvard.

John Cornyn

4:42:17 to 4:42:37( Edit History Discussion )

John Cornyn: but even after the order was stayed, miss kagan continued the policy of barring military recruiters from the office of career services. while her policy barring military recruiters from the office of career services was in effect, dean kagan approached the harvard law school veterans

John Cornyn

4:43:00 to 4:43:21( Edit History Discussion )

John Cornyn: organizations as is the norm for most recruiting events." in short, the law school veterans told dean kagan that the separate access that she wanted them to offer the military could not be equal, would not be equal because they didn't have the ability to match the resources of the office of career services.

John Cornyn

4:43:22 to 4:43:42( Edit History Discussion )

John Cornyn: in may 2005, then the supreme court of the united states said we're going to hear the -- an appeal of the third circuit decision and they granted the writ of certiorari to the defense department's appeal of that case to review their finding on the solomon amendment. over the summer of 2005, the

John Cornyn

4:43:43 to 4:44:03( Edit History Discussion )

John Cornyn: defense department notified dean kagan that it would rescind harvard's funding -- it would deny federal funding to harvard pursuant to the solomon amendment if she continues to deny the military access to the office of career services. faced with this ultimatum, on

John Cornyn

4:44:04 to 4:44:24( Edit History Discussion )

John Cornyn: september 20, 2005, dean kagan finally ended her ten-month unlawful denial of access and announced that pending the supreme court's decision, she would lift the ban and give the military access to the office of career services. but in the meantime, she filed another friend of the court brief, this time in the supreme

John Cornyn

4:44:25 to 4:44:46( Edit History Discussion )

John Cornyn: court of the united states, arguing that the solomon amendment should not apply to her actions barring the military from the harvard law school's office of career services. ultimately, the supreme court unanimously rejected dean kagan's position and unanimously upheld the solomon amendment.

John Cornyn

4:44:47 to 4:45:08( Edit History Discussion )

John Cornyn: so to recap, dean kagan's ban on military recruiters lasted for ten months, from november 2004 through september 2005. during that entire span of time, the department of defense's position was always - was always that the ban violated the congressionally passed solomon amendment.

John Cornyn

4:45:09 to 4:45:30( Edit History Discussion )

John Cornyn: never in that span of time did the supreme court, the first circuit or any other court with jurisdiction over harvard adopt dean kagan's view regarding the scope or enforceability of the solomon amendment. in that span of time, only a split panel of the third circuit held that the solomon amendment was unenforceable. but for all but two months of

John Cornyn

4:45:31 to 4:45:55( Edit History Discussion )

John Cornyn: that time, the third circuit's order was stayed. despite all of this, dean kagan persisted in barring military recruiters from the office of career services and insisted that the military -- that the military could obtain but equal access to harvard law school through alter national routes.

John Cornyn

4:45:56 to 4:46:16( Edit History Discussion )

John Cornyn: dean kagan, the supreme court held -- the supreme court held that dean kagan's decision ran afoul. these, mr. president, i believe, are the undisputed facts of the case. so why do ms. kagan's actions matter? well, i would argue that they

John Cornyn

4:46:17 to 4:46:39( Edit History Discussion )

John Cornyn: matter for two reasons. first is the message her actions send about her lack of respect for the united states military at harvard law school during her deanship. now, ms. kagan claims that she holds the military in the highest respect, but i have to ask you, this notion that you're

John Cornyn

4:47:01 to 4:47:22( Edit History Discussion )

John Cornyn: and, of course, she did this at a time when hundreds of thousands of young men and women deployed to iraq and afghanistan were wearing the unifo of their country to protect their fellow citizens and the rule of law. dean kagan's actions of taking every step legally possible to relegate the military to what

John Cornyn

4:47:23 to 4:47:43( Edit History Discussion )

John Cornyn: she herself believed was separate but equal status placed an unmistakable stigma on the military during a time of war. now, her decision to stigmatize the military, i believe, is reason enough to oppose her nomineeation to a lifetime seat on the united states supreme court. but her actions as dean are

John Cornyn

4:47:44 to 4:48:04( Edit History Discussion )

John Cornyn: troubling for another reason as well. i believe her actions as dean indicate strong evidence that, as a justice, someone sitting in judgment on the united states supreme court, she would tend to advance her political preferences rather than take a traditional approach of a judge

John Cornyn

4:48:05 to 4:48:26( Edit History Discussion )

John Cornyn: in following the law. many of her colleagues have pointed out, correctly, that ms. kagan has never been a judge. while that is not a requirement toerve on the supreme this lack of judicial experience makes it difficult to tell whether ms. kagan would adopt a judicial activist philosophy, if

John Cornyn

4:48:27 to 4:48:47( Edit History Discussion )

John Cornyn: she takes a seat on the court. because she's never held the judge jobof a judge, we must look at the job he she has held and the acts she has taken to see how she's likely to perform her job as a member of the united states supreme court.

John Cornyn

4:49:09 to 4:49:30( Edit History Discussion )

John Cornyn: military in the process. she adopted and interpretation of the solomon amendment so tenuous that it would not garner the vote of a single justice on the united states supreme court. and she did so for the express purpose of advancing her objections to a policy that she said she abhorred.

John Cornyn

4:49:31 to 4:49:52( Edit History Discussion )

John Cornyn: now, bending the law and the facts to reach a preferred result is exactly what judicial activists do, and there is a pattern in ms. kagan's legal career of bending the law and the facts. so while ms. kagan has never been a judge, she has

John Cornyn

4:49:53 to 4:50:14( Edit History Discussion )

John Cornyn: established a disturbing pattern of doing what judicial activists do. ms. kagan's actions in her previous job showed at she is very likely not to embrace the role of a judge who decides cases based on the constitution as written and the laws passed by congress that she is responsible for enforcing if

John Cornyn

4:50:15 to 4:50:35( Edit History Discussion )

John Cornyn: they are in fact constitutional but, rather, she gives every indication of someone who believes that it is within her role and prerogative as a justice to basically make the law rather than to enforce the law as written. no member of the supreme court -- of this chamber, i should say -- no member of this chamber

John Cornyn

4:50:36 to 4:50:56( Edit History Discussion )

John Cornyn: should be surprised if for the rest of her life as a supreme court justice ms. kagan does not merely follow the law as written but, rather, bends the law to advance her progressive political agenda. our constitution is too precious

John Cornyn

4:50:57 to 4:51:19( Edit History Discussion )

John Cornyn: and the supreme court is too powerful for us to accept, without question, a president's nominee to the supreme court the framers of the constitution recognized the importance of this appointment and the power given to a supreme court justice whoerves for life without any political accountability to the electorate.

John Cornyn

4:51:20 to 4:51:40( Edit History Discussion )

John Cornyn: that's why they gave us the responsibility to give our advice and consent. the nomination and confirmation of a supreme court justice is really a two-step process. first the president makes his nomination. the president can nominate anyone the president wants that meets the qualifications in the constitution.

John Cornyn

4:51:41 to 4:52:01( Edit History Discussion )

John Cornyn: but then it's our responsibility to exercise our constitutional duty to provide advice and consent. i believe ms. kagan has failed to embrace the traditional view of judging that i believe all judges must adhere to. at the risk of rather than

John Cornyn

4:52:02 to 4:52:23( Edit History Discussion )

John Cornyn: becoming a lawmaker, which is incompatible with the role of a justice, i believe that a judge who assumes a role of being a policy-makers or a lawmaker is, in essence, a lawbreaker. indeed, ms. kagan's career up to this point shows a willingness to bend the law and the facts to advance her own beliefs. and i fear this trend will

John Cornyn

4:52:24 to 4:52:42( Edit History Discussion )

John Cornyn: continue in an activist tenure on the supreme court. mr. president, for these reasons, i oppose and will vote "no." i yield the floor and suggest the absence of a quorum. the presiding officer: the clerk will call the roll.

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