Kagan confirmed to Supreme Court

The Senate confirmed Elena Kagan to the Supreme Court by a vote of 63-37 on Thursday.

The vote capped off an extremely smooth confirmation process for the 50-year-old Kagan, whose nomination was backed by five Republicans and rejected by one Democrat, Sen. Ben Nelson (Neb.)

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Her confirmation marks a much-needed victory this summer for President Obama, whose approval ratings have dropped during the last couple of months.

Kagan is not expected to significantly tilt the ideological balance of the high court. She succeeds retired Justice John Paul Stevens, who was considered a reliable liberal vote.

Kagan, Obama’s former solicitor general, will be the fourth woman to serve on the Supreme Court, and her addition marks the first time three female justices have served simultaneously.

In a release, Obama said he is “confident that Elena Kagan will make an outstanding Supreme Court justice. And I am proud, also, of the history we’re making with her appointment. For nearly two centuries, there wasn’t a single woman on our nation’s highest court.”

Senate Majority Leader Harry Reid (D-Nev.) on Thursday recalled the words of Justice Ruth Bader Ginsburg, who asserted last year that “women belong in all places where decisions are being made.”

“The Supreme Court is certainly one of those places, and Elena Kagan is certainly one of those women,” Reid said.
Judiciary Committee Chairman Patrick Leahy (Vt.) and other Democrats praised Kagan in a post-vote press conference, with

Leahy calling the court’s new diversity “a milestone that is long, long overdue.”

The vote on Kagan came three months before the election amid a fiercely partisan environment. Kagan received more “no” votes than any Supreme Court nominee ever put forward by a Democratic president who was confirmed.

Not surprisingly, the Senate split mainly on partisan lines.

The five Republicans who voted yes were: Sens. Susan Collins (Maine), Lindsey Graham (S.C.), Judd Gregg (N.H.), Richard Lugar (Ind.) and Olympia Snowe (Maine). All five backed Supreme Court Justice Sonia Sotomayor’s nomination last year.

The votes of some centrist lawmakers, including Sens. Scott Brown (R-Mass.), Blanche Lincoln (D-La.), Mark Pryor (D-Ark.) and Mary Landrieu (D-La.), fell along party lines.

Brown is up for reelection in 2012 and Lincoln is trailing in her reelection race in November.

Nelson, who will be a GOP target in his reelection race in 2012, told The Hill that he was doubtful that Kagan would protect gun rights and that he didn’t believe his constituents would support her.

 “I was told that some of my colleagues were upset about my vote, and I asked if they were from Nebraska. If they’re not from Nebraska, I don’t care,” Nelson said. “I’m not getting a lot of grief from Nebraskans. I’ve explained very carefully and fully about my concern about the Second Amendment. People may not agree with me, but I have some basis for my decision.”

Senate Judiciary Committee ranking member Jeff Sessions (R-Ala.) lambasted Kagan as a liberal political activist with little judicial experience who would be unable to separate her political views from decisions on the bench. Democrats have promoted the former dean of Harvard Law School as a legal scholar and consensus builder who is respected and personally well-liked by liberals and conservatives alike.

The Republicans who supported Kagan for solicitor general in 2009 and voted no on Thursday were Sens. Tom Coburn (Okla.), Orrin Hatch (Utah) and Jon Kyl (Ariz.).

Coburn said he disagreed with Kagan’s judicial philosophy, and Kyl said the two positions are simply different.

“Solicitor general is a limited amount of time; it’s not a lifetime tenure. And it’s not the U.S. Supreme Court,” Kyl said. “I said at the time that my vote for her then would not presage how I would vote again.”

During her confirmation hearing, Republicans grilled Kagan about her decision at Harvard Law School to limit military recruiters’ access to students, about her positions on gun rights and legal memos she wrote while advising the Clinton White House, including one on partial-birth abortion.

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This week, Sessions attacked Kagan’s record as solicitor general, arguing that she failed to “vigorously defend” the “Don’t ask, don’t tell” policy on gays serving openly in the military in several cases. Republicans opted not to filibuster her nomination.

During the Senate Democrats’ post-vote press conference, Sen. Arlen Specter (D-Pa.) took the unusual step of chiding Kagan.

Specter noted that Kagan criticized confirmation hearings in a paper she wrote while a law professor at the University of Chicago. At the time, Kagan concluded hearings were of little use because nominees provide little or no information.

Without such insight, Specter said, senators cannot prevent justices from testifying one way during their confirmation hearings, then “doing a 180-degree turn” once they start deciding cases. As a Republican last year, Specter voted against Kagan’s confirmation for solicitor general.

“Elena Kagan has followed the existing precedent, and that is answering very little, just about as much as she needs to be confirmed,” Specter said. “Regrettably, that has become the standard. … It is easy to confirm a justice, but it is tough to get enough information to know where the court is going.”

Both Leahy and Specter said putting cameras in the Supreme Court may be one way to change that trend, so that justices could be held more accountable to the public for sharp shifts in their philosophy. Kagan also voiced support for the idea during her confirmation hearings.

The five Republican votes Kagan received was short of the nine received by Sotomayor last August.

Republicans who supported Sotomayor but not Kagan said she had less experience than Sotomayor.

“It was the fact that she had no record, and her statements,” said Sen. Kit Bond (R-Mo.). “I asked her to come in to meet me, but apparently they didn’t need my vote.”

Hatch, who may face a primary challenge in 2012, criticized her “judicial activism.”

In remarks before the vote, Senate Minority Leader Mitch McConnell (R-Ky.) underscored Kagan’s political loyalties, noting that she had worked on a volunteer basis as an opposition researcher for Michael Dukakis’s presidential campaign and clerked for Justice Thurgood Marshall, and cited her time in the Clinton White House.

“When we look at her resume, we find a woman who has worked fervently to advance the goals of the Democratic Party and liberal causes, usually at the expense of those with whom she disagrees politically or ideologically,” he said.

Sen. Charles Schumer (D-N.Y.) brushed aside GOP concerns, saying, “Average Americans will be a step closer to once again having their voices heard in the highest court in the land.”

— This story was originally posted at 3:50 and updated at 4:05 p.m. and 8:27 p.m.