Senator John Cornyn Explains His “No” Vote on Kagan Nomination
July 20, 2010

(The following is a news release from Senator John Cornyn, R-Texas…I am publishing the entire messge because I know people often like to read that instead of  just one quote)

 Senator Details Why Kagan Falls Short of the Judicial Standard of Excellence


WASHINGTON—U.S. Sen. John Cornyn, R-Texas, a member of the Senate Judiciary Committee and Republican Leadership, today voted against the nomination of Elena Kagan to be Associate Justice of the U.S. Supreme Court. Below is the full text of his remarks, as prepared for delivery during today’s Senate Judiciary Committee meeting:


            “I am voting ‘no’ on the nomination of Solicitor General Elena Kagan.

“The votes of this Committee on nominations to the U.S. Supreme Court are among the most consequential votes we cast, because these are lifetime appointments. 

“Each Senator must carefully study the nominee’s views and reach a decision as to whether to endorse that nominee for a seat on the High Court.

“In my view, that decision must be based on a standard of excellence.  To be confirmed, a nominee must establish that she would adhere to a proper judicial philosophy.   The nominee must establish through her testimony, through her judicial and non-judicial writing, and through her experience, that she would exercise the judicial power of a Supreme Court justice with a deep understanding of both judicial restraint and the need to enforce our written Constitution.

“Elena Kagan falls short of that standard.

“Solicitor General Kagan’s testimony before the Judiciary Committee did not assure me that she agrees with the traditional understanding of the proper role of a judge.   

“Judges should strictly interpret the written Constitution, which means both enforcing written limitations on the scope of government power, such as the Second Amendment and the Commerce Clause, as well as not inventing new rights or imposing their own policy views on the American people.

“Ms. Kagan’s testimony about her judicial philosophy was vague and open to multiple interpretations.   

“In her written responses following the hearings, for example, Solicitor General Kagan indicated that she would decide cases based on her ‘constitutional values.’   But she acknowledged that her constitutional values can ‘point in different directions,’ and claimed that she would ‘exercise prudence and judgment in resolving the tension between them.’ 

“In voting on a Supreme Court nominee, I think we need more certainty than that that the nominee would exercise ‘prudence and judgment.’

“Solicitor General Kagan also testified that the Constitution is written in ‘general terms’ that enable the courts to change the law in response to “new conditions and new circumstances” – changes that she testified occur “all the time.” 

“But Solicitor General Kagan did not tell us how to know when circumstances have changed to justify a change in the law.  I suppose that is another question that would be a matter of her “prudence and judgment.”

“I was also troubled by her testimony in specific areas of law. 

“For example, Solicitor General Kagan was unable to articulate limits on the federal Commerce Clause power.  She recognized that the Supreme Court used to impose such limits.   But she recalled, with apparent approval, how the Supreme Court had then changed the law and no longer imposed such restrictions because “the old jurisprudence really wasn’t working.” 

“I assume this is another example of how she believes “new conditions and new circumstances” justified a change in the law – in this case, gutting the foundation of the federal government as a government of limited power.

“I was also troubled by Solicitor General Kagan’s testimony on the Second Amendment. 

“She recognized that the Supreme Court’s precedents in Heller and McDonald v. City of Chicago were existing law.   She also referred to those cases as ‘settled law.’  But her testimony made clear that ‘settled law’ has no particular meaning.  “Settled law” just means the law until a new majority comes along to ‘unsettle’ these decisions by overruling them.   

“We saw the same trick with Justice Sotomayor’s testimony on the Second Amendment.   Last year, she testified that Heller was “settled law.”  But last month, she joined a dissenting opinion in McDonald urging it to be overturned.  

“The Second Amendment is too important to rest on such an empty promise.

“Finally, I am troubled by Solicitor General Kagan’s testimony on military recruiting during her time as Dean of Harvard Law School.  Her refusal to allow the military to recruit on campus just like any other employer reflects an effort to stigmatize the military.  It suggests a nominee who has values that are out of step with those of the American people.

“Every Supreme Court nominee bears the burden of proof of establishing they deserve the trust of the American people for a life appointment to the high court.  In my view, Elena Kagan has not satisfied that burden of proof. 

“For these reasons, I will oppose her nomination.”

Sen. Cornyn Wants To Track PrePaid Cell Phones To Stop Terrorists
May 27, 2010


Senators Propose First-Ever Federal Law to Require Phone Companies to Keep Records of Buyers’ Identities

WASHINGTON, DC—U.S. Senators Charles E. Schumer (D-NY) and John Cornyn (R-TX) announced first-of-its-kind federal legislation Wednesday that would help stop terrorists like the Times Square bomber from keeping their identities hidden from law enforcement by using prepaid cell phones to plot and coordinate their attacks. Under the new proposal, buyers of prepaid cell phones would be required to present identification at the point of sale, and phone companies would have to keep the buyers’ information on file as they already do with users of landline phones and subscription-based cell phones.

“This proposal is overdue because for years, terrorists, drug kingpins and gang members have stayed one step ahead of the law by using prepaid phones that are hard to trace. We caught a break in catching the Times Square terrorist, but usually a prepaid cell phone is a dead end for law enforcement. There’s no reason why it should still be this easy for terror plotters to cover their tracks,” Schumer said.

“Weeks ago, we came alarmingly close to a devastating terrorist attack in Times Square. A major lesson we’ve learned from the investigation and arrest of Faisal Shahzad is that we must require individuals purchasing a pre-paid cell phone in this country to provide verified indentifying information. While most Americans use pre-paid mobile devices lawfully, the anonymous nature of these devices gives too much cover to individuals looking to use them for deviant, dangerous means. It would be foolish to stand idly by while the risk remains that another terrorist or criminal could purchase a pre-paid phone leaving no paper trail. I was pleased to work with Sen. Schumer on this important legislation, which sends a clear message that those who purchase pre-paid mobile devices will no longer remain anonymous,” Cornyn said.



Although there are many legitimate users of prepaid cell phones, they have also become the communication device of choice for terrorists, drug lords and gang members interested in masking their identities. Since they can purchased and activated without signing a contract or undergoing a credit check, prepaid cell phones provide virtual anonymity.

Faisal Shahzad, the 30-year-old suspect in the Times Square terror plot, used a prepaid cell phone to arrange the purchase of the Nissan Pathfinder that he attempted to turn into a car bomb. He also used the phone to make a series of calls to Pakistan in the days leading up to the attack. Federal authorities were later able to track down Shahzad, but only thanks to a break: a number listed in the phone’s call log matched one provided to U.S. Customs officials when Shahzad reentered the U.S. from Pakistan months earlier. But for that stroke of luck, authorities might never have been able to match the phone number provided by the seller of the Pathfinder to Shahzad.

It is not new for terrorists to rely on prepaid cell phones. The 9/11 hijackers used them to communicate in the months prior to their attack. In a speech in 2002, FBI Director Robert Mueller cited the plotters’ use of the devices to show that they “managed to exploit loopholes and vulnerabilities in our systems, to stay out of sight, and to not let anyone know what they were up to beyond a very closed circle.”

Prepaid cell phones have also been used as detonation devices for bombs, as was the case in the attack on a Madrid train that killed 191 people in Spain in 2004.

In 2006, a wave of suspicious bulk purchases of prepaid cell phones led the FBI and Department of Homeland Security to issue a nationwide bulletin to local police calling attention to the trend and pointing out the potential links to terrorist activity. Stores such as Wal-Mart implemented policies limiting how many prepaid devices customers could purchase in a single visit.

In addition to terrorism cases, prepaid phones have long been used by other types of criminals, like drug sellers, mob figures and gang leaders. In 2009, they were even used by hedge fund managers and Wall Street executives implicated in the largest insider trading bust in U.S. history.

In court papers, federal prosecutors detailed how traders from the Galleon Group hedge fund communicated with other executives through prepaid phones in order to try to evade potential wiretaps. In one instance, one suspect is described as having chewed the Subscriber Identity Module, or SIM card, until it snapped in half in order to destroy possible evidence.

Countries such as Australia, Germany, Indonesia, Japan, Malaysia, Norway, Singapore, South Africa, Switzerland, and Thailand already require registration of prepaid cell phone users due mainly to their use by terrorists.

In the U.S., laws requiring registration of prepaid cell phone users have been proposed in states including Texas, Massachusetts, Pennsylvania, Missouri, Georgia and South Carolina. But in light of the increased reliance of terrorists on the devices, Schumer and Cornyn said Wednesday it was time for a federal response.


Senator Cornyn serves on the Finance, Judiciary, Agriculture and Budget Committees.  He serves as the top Republican on the Judiciary Committee’s Immigration, Refugees and Border Security subcommittee. He served previously as Texas Attorney General, Texas Supreme Court Justice, and Bexar County District Judge.