Wednesday, August 4, 2010

U.S. Senator Johnny Isakson (R-GA)
Floor Statement on the Nomination of Solicitor General Elena Kagan to be Associate Justice of the Supreme Court
Remarks as Delivered on the Senate Floor

Mr. President, I am always reluctant to find out that I am following the Senator from Oklahoma on the floor of the Senate. He is always prepared and always eloquent. I commend the Senator on his speech.

But I want to commend him on his questioning in the hearing because he allowed us to gain, and Ms. Kagan to express, important points, important opinions, important judgments, and important statements for everybody in this body to make up their minds. That is really what this Senate is all about, and it is Senators like the Senator from Oklahoma who help us all to do our job, and I commend him very much for his work.

I also commend him for covering so many facts. My speech will be very brief. I announced about 4 weeks ago that I would not vote for the confirmation of Ms. Elena Kagan and expressed at that time the reasons. But I wanted to memorialize that on the Senate floor because it is a serious responsibility that we have to advise and consent on the nomination of the President of the United States.

In response to that, the advice and consent should always be thoughtful and should always be thorough, and mine is generally based entirely on the Constitution when it comes to the Supreme Court and the appointments the Presidents of the United States makes because I am well aware my position, the President's position, and the position of all of us in this was a creation of those of our Founding Fathers who wrote the Constitution that created the government, that is the United States of America and the three branches of that government that will govern us as a nation: the executive, the legislative, and the judicial. Executive, as in the President; legislative, as in us; and the judicial, as the jury--the jury not of who is right and wrong but is the Constitution right, is the law right that we passed in relation to the Constitution that created us.

Two things in Ms. Kagan's past concern me greatly in terms of the direction she would go as a Justice on the U.S. Supreme Court. One is the Solomon rule application when she was dean of the Harvard Law School.

When I helped write, along with a lot of other Members in this body, No Child Left Behind, we made sure we covered this issue of military access on campuses of secondary schools and postsecondary schools.

The Solomon Amendment is a simple amendment that says: If you accept Federal funds as a public institution or as a private institution, in terms of Harvard through research or funds such as that, that U.S. military representatives will have access to the campus.

Ms. Kagan made the conscious decision as dean of the law school that that access would not be available at Harvard and, even after direction otherwise, continued in that position until she eventually withdrew. Well, if someone is going to the Supreme Court of the United States of America to be a judge of our Constitution and its application to our legislative and judicial branches, you must remember the first responsibility designated to this Congress and to this government is to protect and defend the domestic tranquility of the people of the United States of America and to constitute an army and a navy to do that.

You cannot draw on that army and navy if you cannot draw on the people in your country. At a time today, a contemporary time such as 2010, where everyone who serves--everyone, not a one is conscripted, every single one is a volunteer--the information about the opportunities, the availability and the promise of a career in the military or a period of service should not be denied anyone who goes to an institution that receives funds from the United States of America and from this Congress.

Secondly, you know there has been a lot of talk about the Citizens United case, and there have been a lot of political arguments about the Citizens United case. But it is a first amendment case. I do not think anybody argues about that.

In listening to the testimony in the Judiciary Committee and reading the record on the Citizens United case, it is obvious, in her expression and her arguments before the Supreme Court, Ms. Kagan felt that even though you had a first amendment, through either printing or writing or video or audio, the government could restrict political speech.

Well, the first amendment is the guarantee of free speech. To argue a case that, notwithstanding the first amendment, political speech could be run by the government and judged by the government and its timing and its accessibility, to me, flies in the face of the very first amendment, of the first 10 amendments that finally allowed us to pass a Constitution and come together as a nation.

So there are a lot of other issues. The Senators who preceded me have raised a lot of those issues. I commend Ms. Kagan, too, on her complete congeniality and her complete candor before the committee. But in terms of this Senator, in terms of my vote, in terms of my judgment, it is the case and the opinions on the first amendment in Citizens United, and the actions contrary to the Solomon Amendment, and military access that, to me, deliver a temperament that I do not think is appropriate of a Justice of the Supreme Court at this time.