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Cochran Will Not Support Kagan Confirmation to Supreme Court

August 4, 2010

WASHINGTON, D.C. - U.S. Senator Thad Cochran (R-Miss.) today announced that he will not support the confirmation of Elena Kagan to be an associate justice.

In a speech to the Senate, Cochran outlined the reasons he will vote against confirming Kagan, the current U.S. Solicitor General who was nominated by President Obama to replace retired Justice John Paul Stevens.  The Senate is expected to vote on the Kagan nomination by the end of the week.

The following is the text of Cochran's remarks.

Mr. President, as the Senate considers the nomination of Solicitor General Elena Kagan to be an Associate Justice on the United States Supreme Court, I want to thank Senators Leahy and Sessions for their work in the Judiciary Committee on this nomination.  The hearings were informative and respectful, and they produced a hearing record that gives all Senators a better understanding of the nominee's background.

She graduated with academic honors from Princeton University and Harvard Law School.

She clerked for Supreme Court Justice Thurgood Marshall, served as a White House policy advisor for the Clinton Administration, and as Dean of Harvard Law School. Last year, on March 19, she was confirmed by the Senate as U.S. Solicitor General.

She has not had much experience as a practicing lawyer, and she has had no experience as a judge.  Her lack of legal and judicial experience is not a disqualification, but it does make our job of evaluating this nominee a bit different.  We should ask ourselves whether Elena Kagan will perform the duties of a Supreme Court Justice with the requisite fairness, restraint, and respect for settled precedent under the laws and constitution of the United States.

After reviewing the record and her testimony, I believe serious questions about her respect for precedent have not been answered.  General Kagan has a history of political advocacy, and she has not shown that she appreciates the critical distinction between political advocacy and neutral judicial decision-making.

As an example, General Kagan's prior work suggests that she would not protect an individual's constitutional right to bear arms.  As a policy advisor to President Clinton, Kagan promoted several gun control proposals, including background checks for all gun purchases in the secondary market, a gun tracing initiative, and giving law enforcement the ability to retain background check information from lawful gun sales. 

She also drafted executive orders to restrict the importation of semiautomatic rifles and to require all federal law enforcement officers to install locks on their weapons.

More recently - as Solicitor General, Ms. Kagan refused to submit a brief to the Supreme Court in support of the petitioner in the McDonald v. Chicago case.  In June of this year, the Supreme Court ruled in favor of the McDonald petitioner, holding that the Second Amendment right to bear arms is binding on the states. 

Notably, McDonald was a 5-to-4 decision.  It is the second Supreme Court decision in recent years to affirm the right to bear arms by a narrow, 5-to-4 majority.  When asked whether she agrees with the four dissenting Justices in these two cases, General Kagan repeatedly declined to answer the question.

I am concerned that General Kagan is not committed to observing binding precedent in the area of Second Amendment rights.  If she is confirmed to the Supreme Court, she could overturn the closely-decided holdings of these recent cases.

General Kagan's record on military recruiting at Harvard Law School also is troubling to me.  As Dean of Harvard Law School, she disallowed military recruiting on campus during a time of war.  Her actions were in violation of federal law that requires schools accepting federal funds to allow military recruiters access to campus.  As justification for her actions, she referred to the military's "don't ask, don't tell" policy as a "moral injustice of the first order," and she reaffirmed those views during her confirmation hearings. 

When she openly defied federal law, she e-mailed the Harvard Law community to say she "hoped" the federal government "would choose not to enforce" the law.  The Supreme Court later ruled unanimously that Harvard was, in fact, in violation of federal law.

What is even more troubling is that Kagan was not candid about this incident during her recent confirmation hearings.  When asked about the issue, she claimed that Harvard Law School was "never out of compliance with the law."  She also said that the military had "equally effective substitute" methods for recruiting students from Harvard and had "full and good access" to students during this time.

Her assertions are belied by several contemporaneous documents from military recruiters, showing that they encountered severe impediments to recruiting Harvard students.  Internal Pentagon documents indicate that under Dean Kagan, "[t]he Army was stonewalled at Harvard." 

The chief of recruiting for the Air Force's Judge Advocate General Corps wrote that "Harvard is playing games."  And an Air Force recruiter wrote to Pentagon officials stating that, "[w]ithout the support of the Career Services Office [at Harvard], we are relegated to wandering the halls in hopes that someone will stop and talk to us."

I believe that the nominee's discriminatory treatment of military recruiters was both contrary to law and a disservice to the military during a time that America was at war.  Her recent testimony that she acted within the law and that the military had equal access to students is less than candid and is directly contradicted by a unanimous Supreme Court ruling.

It is the responsibility of the Senate to make certain that those who are confirmed to the Supreme Court are not only qualified by reason of experience and training, but also are fully committed to upholding the rule of law.  I cannot support Ms. Kagan's nomination to a lifetime appointment on the Supreme Court, based on the facts I've just described.

Ms. Kagan has a history of openly defying established federal law and of being hostile to certain individual rights guaranteed by our constitution.  Her recent hearing testimony did not show that she is prepared to relinquish the role of political advocate and to take seriously the oath to "faithfully and impartially" uphold the constitution and the laws of the United States.

For these reasons, I cannot support her nomination.