Aug 04 2010


U.S. Senator Richard Shelby (R-Ala.), today made the following statement on the floor of the U.S. Senate regarding his opposition to the nomination of U.S. Solicitor General Elena Kagan to serve on the U.S. Supreme Court. 

“Put simply, Ms. Kagan is a political activist, not a jurist,” said Shelby. “Throughout her confirmation hearings, she failed to explain where her political philosophy ends and her judicial philosophy begins. We need a legal mind on the Supreme Court, not a political one.” 

Senator Shelby’s remarks, as prepared, are as follows:

“Mr. President, I rise today in opposition to the nomination of Solicitor General Elena Kagan to the United States Supreme Court.

“Upon President Obama’s nomination of Ms. Kagan, I stated that I would base my decision on what I could ascertain about her judicial philosophy from other components of her record, in light of her lack of judicial experience.  What little information she offered during her confirmation hearings did not accrue to her credit, in my judgment. 

“I am unconvinced that the hostility Ms. Kagan demonstrated toward the Second Amendment as clerk to Justice Marshall, counsel for the Clinton Administration, and as Solicitor General under President Obama has changed or would not drive her legal opinions on the matter. 

“Ms. Kagan has spent her career implementing anti-gun initiatives and evidence of her antagonistic attitude towards the Second Amendment can be found from the beginning of her legal career. 

“As a U.S. Supreme Court law clerk in 1987, Ms. Kagan stated she was “not sympathetic” toward a man who contended that his constitutional rights were violated when he was convicted for carrying an unlicensed gun. 

“In a memorandum to Justice Marshall regarding Sandidge v. United States, Ms. Kagan wrote that Mr. Sandidge’s “sole contention is that the District of Columbia’s firearm statutes violate his constitutional rights to ‘keep and bear arms.’  I’m not sympathetic.”  She recommended that the Supreme Court not even hear the case, thereby allowing Mr. Sandidge’s conviction to stand.

“When Ms. Kagan served as a political advisor to President Clinton, she played a key role in the gun control efforts that were a trademark of the Clinton Administration.  Ms. Kagan took a lead role in a series of efforts to respond to the Supreme Court’s 1997 ruling in Printz v. United States, which struck down parts of the 1993 Brady handgun law. 

“Ms. Kagan drafted proposals that would have effectively prohibited the sale of guns without action by a ‘chief law enforcement officer.’  She authored a draft executive order requiring ‘all federal law enforcement officers to install locks on their weapons’ and one to restrict the importation of certain semiautomatic rifles.  Ms. Kagan drafted two memorandums in 1998 that advocated for policy announcements on various gun control proposals, including ‘legislation requiring background checks for all secondary market gun purchases,’ and a ‘gun tracing initiative.’

“As Solicitor General for President Obama, Ms. Kagan failed to find a federal interest in the McDonald v. Chicago case and did not even file a brief in the case.

“Assaults on the Second Amendment will not end with the McDonald v. Chicago ruling. 

“Therefore, the overarching question remains – will Ms. Kagan’s attitude as a Supreme Court Justice radically change from her clear and extensive anti-Second Amendment record? 

“I firmly believe the right to bear arms is a fundamental right.  I do not believe Ms. Kagan’s political record and prejudiced background in opposition to the Second Amendment shows that she is prepared to uphold this core Constitutional guarantee as a Supreme Court Justice. 

“In fact, Ms. Kagan’s record has demonstrated a disregard for those laws and constitutional rights she disagrees with.  This is also clearly evidenced in her affront to our men and women in the military.

“As a vocal critic of the military’s ‘Don’t Ask, Don’t Tell’ policy, Ms. Kagan barred military recruiters from Harvard’s campus during her time as Dean of Harvard Law School.  She made her personal feelings unmistakable by repeatedly stating that she abhorred the military’s ‘Don’t Ask, Don’t Tell’ policy, calling it a ‘moral injustice of the first order.’ 

“By barring recruiters, Ms. Kagan’s actions violated the Solomon Amendment, which requires that the military receive equal access to that of other employers on campus or jeopardize their federal funding.  Ms. Kagan joined a brief before the Supreme Court arguing that Harvard should be able to keep military recruiters off campus but still receive federal funds. 

“She refused to permit ordinary campus access to military recruiters during a time of war, yet still wanted to cash in on federal funding. 

“This position was unanimously rejected in 2006, with the Supreme Court stating that this was clearly not what Congress intended.

“Mr. President, I find it ironic that we are asked to replace the only Justice with wartime experience with a nominee who willingly obstructed our military during a time of war.

“It is unacceptable to limit the ability of our armed forces to recruit on campus at a time when the United States is fighting two wars. 

“I have serious concerns about her actions against the military and her willingness to prevent access to potential recruits during a time of war. 

“This incident illustrated her liberal agenda superseding her professional judgment. 

“Mr. President, I have highlighted only two issues of many that exemplify Ms. Kagan’s well-defined political record.  Put simply, she is a political activist, not a jurist. 

“Throughout her confirmation hearings, she failed to explain where her political philosophy ends and her judicial philosophy begins.

“Mr. President, we need a legal mind on the Supreme Court, not a political one. 

“We need an impartial arbiter, not a partisan political operative.

“Therefore, I firmly oppose Ms. Kagan’s nomination.”