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Excerpted remarks of Sen. John Cornyn (R-TX)

"Solicitor General Kagan, welcome to these hearings, and congratulations to you and your family and -- and friends.

An e-mail came across my inbox this morning that I -- I thought of as I heard the statements being made on both sides here. It is a quote, "Liberty is not a cruise ship full of pampered passengers. Liberty is a man of war, and we're all the crew."

I don't know why I thought of that, given the nature of these hearings so far, but, of course, we'll be talking about the different roles we each play on that crew."

"This activist vision takes the power of the people to make the law and change the law and gives that power to a judiciary that is unelected and that imposes its will on the rest of us.

This stands in stark contrast to the founders' vision, perhaps best expressed in Federalist number 78, that the judiciary would be the, quote, "least dangerous branch," close quote, to the political rights in the Constitution because, in Hamilton's memorable words, the judiciary has no influence over either the sword or the purse, no direction either of the strength or the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment. "

"The question raised by every Supreme Court nomination, I believe, is whether the nominee believes in the traditional role or the activist vision. Does a nominee believe that the courts should make policy, like Congress, even though they're not accountable to the people for their actions via elections? Will the nominee enforce the written Constitution and not invent new rights or will the nominee see it as his or her job to change the Constitution to (inaudible) itself up with their policy preferences? "

"Solicitor General Kagan, we know the president has the right to nominate anyone he chooses. It's noteworthy, however, that among his nominees, many of whom I have supported, President Obama has chosen several nominees that I cannot support because they're clearly outside the judicial mainstream.

One pending nominee bent the rules to keep a confessed serial killer from the death penalty. Another pending nominee has argued that it is -- that there is a constitutional right to welfare payments. A third nominee has argued that federal judges should internationalize our law, matching it to views abroad.

These are not mainstream positions, and, in my view, they are disqualifying positions."

"You, as you recall, have written in your 1995 law review article that the critical inquiry of judicial confirmation hearings must be the perspective the nominee would add and the direction in which she would move the institution. I agree with that. It's important in these hearings to find out whether you would move the court in a traditional or an activist direction. The Constitution's protections, such as federalism, the takings clause, the Second Amendment right to keep and bear arms are just a few areas of obvious inquiry.

Solicitor General, I must say that the burden is on you. I hope you can persuade us the path you would take if you were confirmed to the Supreme Court.

Again, I welcome you to the Senate and look forward to your testimony. Thank you. "


By Emi Kolawole  |  June 28, 2010; 3:19 PM ET
 
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