My vote for Kagan says elections matter (Sen. Lindsey Graham)

I thought you both handled yourselves well. I thought Jeff played the role of the loyal opposition in a very credible, honorable manner. And Senator Leahy moved the ball at a fast pace. But I think we all, at the end of the day, could handle the pace.

If you're looking for a way to infuriate the public in terms of a model, just do what we're doing. The congressional approval rating is at 21 percent, and I often wonder who those 21 percent are, and what do they like?

So, I understand exactly what Senator Specter has been saying about the Court. But we have to remember, we can criticize the Court, and that's great. The Court is a pretty fragile body. They don't have the ability to criticize us. I guess sometimes in their written opinion they can.

So, I'm a little respectful of that, that, you know, when you appoint someone to be a judge for life, that's a tremendous responsibility on that person. But at the end of the day, an independent judiciary has served us well. I don't want to see that erode any further than it's been eroded in recent times.

Now, about the hearing, I thought it was better than most. But I agree with Senator Specter, it fell short of what we hoped to have.

At the end of the day, the hearings are important. They give you an opportunity to evaluate the nominee, but there are certain things that you can't comment on. I mean, if you think that same-sex marriage is prohibited by the Constitution, I doubt if this is the place you would say it, since that's probably what you're going to have to decide sooner rather than later.

The prior statements you make need to be evaluated. And I think my colleagues on this side have put Solicitor General Kagan to the test.

There's plenty of reasons for a conservative to vote "no" — I mean, very good reasons. But I think there's a good reason for a conservative to vote "yes." And that's provided in the Constitution itself.

We all talk about the Constitution, as we should be. It's the foundation of our democracy.

As to Ms. Kagan, I thought she was smart. I don't think anyone's questioned that. That's good, if you're going to be on the Court. It's good to have smart people there.

She was funny. That goes a long way in my book. That shows some self-confidence, that you can laugh at yourself. That shows that you're pretty comfortable with who you are.

She has an impressive background. She's academically gifted. She's liberal. That one caught me by surprise. But yes, she's liberal. I sort of expected that, actually.

When it came to being solicitor general, I think she's acquitted herself pretty well. Some of my colleagues have some problems with the way she represented the government in certain cases. I understand their concerns. But generally speaking, I thought she's done a good job representing our nation on War or Terror issues, which are very, very important to me.

We're going to have a lot of news being made today. The prime minister of Great Britain and President Obama are going to be meeting today to talk about Afghanistan. So let's remember that there's a lot going on and we're at war. So, I think she understands we're at war.

When it comes time to evaluate people, I tend to listen to what people who have known the nominee longer than I have, what they say. It's particularly impressive when a conservative can say something good about a liberal. That's being lost in this country a bit, and it's vice versa.

Miguel Estrada's letter just really hit me hard. He said, "If such a person who has demonstrated great intellect, high accomplishment and upright life is not easily confirmable, I fear we will have reached a point where no capable person will readily accept a nomination for judicial service."

Well, I'm not so sure we're there yet, and I hope we never get there. But that's something that we should all be mindful of. That's a good caution from Miguel Estrada about the Senate and where we're going, and where the nation's going, when it comes to confirming judges.

I asked Elena Kagan to write a letter for Miguel, and being a smart person, she took me up on the offer. It would have been pretty bad if she hadn't, so I expected her to write the letter. But here are some of the things she said. 

“In my judgment, Miguel would be absolutely superlative in either role, for the Supreme Court or the appellate court. I spent a great deal of time with Miguel in law school and as clerk in the Supreme Court, and I've kept up with his quite brilliant career since that time.

"When I became dean of Harvard Law School, I asked him to serve on the law school's visiting committee, which is an advisory body made up of some of the school's most distinguished students. And I've dealt with Miguel on several sensitive litigation matters during my time as solicitor general.

"He's an extraordinary lawyer, deeply knowledgeable about all aspects of our legal system and thoroughly responsible in his legal judgments. He has a towering intellect, a prodigious capacity for work. He is thoughtful and reflective, subjecting his own beliefs and intuitions, and less (ph) those and others, to the full force of his analysis and talents.

"And underneath a sometimes gruff exterior, he has the proverbial heart of gold. No one I know is a more faithful friend and a more fundamentally decent person.”

Now, that gives me hope that people who were law school classmates, have taken different paths in terms of legal philosophy and political interaction, can, at the end of the day, say nice things about each other.

What does that mean? I don't know if it means much. It just makes me feel better. And I think it would make a lot of Americans feel better, if we could react that way to ourselves a bit.

Now, about the military and Harvard.

The "Don't ask, don't tell" policy in the view of many is discrimination, unfair and unsound. Some of us who support the policy as it is written take a different view. It's OK to disagree with me. I hope it's OK if I can disagree with you about that.

Lawyers challenge the law. She challenged the law. And schools and organizations make political statements all the time in this country. I hope that's OK.

In my view, Harvard's position on denying full access to military recruiters to their law school said more about Harvard than it did the military. It was their right to do so within the law. And the big loss is not the military's loss, but Harvard's loss, because I can't think of a more noble aspiration or cause for a lawyer to serve than serve his or her country in uniform.

Having said that, the policy changed in 2002 when the Bush administration came in. In 2005, it was reinstated where the military was not given equal access.

In 2005, more Harvard graduates entered the military than any time in history that we've been following. So, at the end of the day, it didn't affect — it actually helped, for some odd reason to get people from Harvard Law School to enter the JAG Corps.

When it comes to her, if I believed that she had animosity in her heart about those who wear the uniform, I would easily vote no. I don't believe that. I don't believe that, because of the people who went to Harvard who are now in the military and spoke very eloquently about how she, Elena Kagan, inspired them.

At the end of the day, this Harvard Law School exercise said more about Harvard than it did the military, and I want to put it in its proper perspective. I believe that she is a loyal American, very patriotic and loves the military as much as anybody else.

She hired conservative faculty at a liberal school. That shows she's willing to reach out.

Judge Barak, the Israeli Supreme Court justice, was her hero. That one threw me for a loop. But at the end of the day, if Judge Barak can be her hero and she get confirmed, I hope Judge Bork can be a conservative's hero, and you all will confirm that person.

Now, what was I talking about in terms of the Constitution? I'm going to read to you, if I can find it here, Federalist Number 76, Alexander Hamilton. He indicated that the Senate "should have a special and strong reason for the denial of confirmation."

Hamilton continued, "To what purpose then require the cooperation of the Senate? I answer that the necessity of their concurrence would have a powerful, though in general a silent operation. It would be an excellent check upon a spirit of favoritism in the president, would tend generally to prevent the appointment of unfit characters from family connection, from personal attachment, and from a view to popularity."

Seventy-three of the 126 Supreme Court nominations that I've been informed by my staff — and I hope they're right — were done without roll call votes. Something's changing when it comes to the ‘Advice and Consent’ clause.

All of us abhor judicial activism because it's a threat to society in general when an unelected judge takes on a role outside of their sphere. The question I have for the body: Are we living in an age of legislative activism, where the words haven't changed in the last 200 years, but certainly the voting patterns are?

The confirmation hearings themselves certainly have changed. What does it mean?

Senator Obama was part of the problem, not the solution.

One of the problems he has is, when he had the role of Advise and Consent, he sort of turned it upside down and talked about qualifications and temperament being about 70 percent or 80 percent and what's in your heart being the last. What's in Elena Kagan's heart is that of a good person who adopts a philosophy I disagree with.

Now, the Washington Times wrote an editorial about three good reasons I could vote no. I could give you 100 reasons why I could vote no if I based on — my vote on how she disagrees with me.

No one spent more time trying to beat President Obama than I did, except maybe Senator McCain. I missed my own election and voted absentee. But I understood we lost, President Obama won, and I've got a lot of opportunity to disagree with him. But the Constitution in my view puts a requirement on me as a senator to not replace my judgment for his, not to think of the 100 reasons I would pick somebody differently or pick a fight with Ms. Kagan.

It puts upon me a standard that stood the test of time: Is the person qualified? Is it a person of good character? Are they someone that understands the difference between being a judge and a politician? And, quite frankly, I think she's passed all those tests.

To say that the job of being a senator is a rubber stamp is not true. Mr. Liu I will not vote for. He has not passed that test. Mr. Haynes, me and Senator Specter gave Mr. Haynes a hard time back during the Bush years because I didn't think he understood the difference between politics and the law. There will be a time when I disagree, but it should be the exception, not the rule.

So in conclusion, we are making history, all of us, because by your very time here, you're getting to do something unique and special. What are the consequences of our time in the Senate? What are the precedents we are setting? Are we taking the language of the Constitution that stood the test of time and basically putting a political standard in the place of a constitutional standard? That's for each senator to ask and answer themselves.

Objectively speaking, things are changing, and they're unnerving to me. The court is the most fragile of the three branches. It has no army to defend herself. It has no political voice. It has no lobbyists. You can't be on cable TV. So you're at a disadvantage.

So while it is our responsibility to challenge the court, to scrutinize the court, to put the nominee to a test, it is also our obligation to honor elections, respect elections and to protect the court.

I view my role as a United States senator in part protecting the independence of the judiciary and making sure that hard-fought elections have meaning in terms of their results within our Constitution.

And the election that I am worried about has passed. The election that all of us are concerned about are our own coming up. How do you balance those two? How do you stay within keeping your job and honoring the fact that the people have spoken?

This is what Senator Phil Gramm (R-Texas) said about Justice Breyer:

"So I'm going to vote for this nominee not because I agree with him philosophically, but because I believe he is qualified. I believe he is credible. I believe his views, though they're different than mine, are within the mainstream of thinking of his political party.

"Whether I like it or not — and I do not — I do not — the American people put Bill Clinton into the White House. This nomination is a result of that. I'm not going to stand in the way of it because I differ philosophically with this nominee.

"I'm going to vote for him, and that doesn't mean I'm pro-choice. I'm very pro-life. I'm going to vote for him because I believe that the last election had consequences and this president chose someone who was qualified, who has the experience and knowledge to serve on this court, who's in the mainstream of liberal philosophy and understands the difference between being a liberal judge and a politician."

At the end of the day, after the hearing, it was not a hard decision for me to make. I thought she did a very good job and she will serve this nation honorably. It would not have been someone I would have chosen, but the person who did choose, President Obama, I think chose wisely.