“I made it clear that for the temporary position of solicitor general, a position that she might hold for a matter of maybe four years at most, that I could overlook her relative lack of experience and lack of knowledge about her background. And in fact, we could see how well she’d do in that position to judge her for a more permanent one,” Kyl said.

“This is a lifetime appointment now that the president has nominated her for, and she is quite young and not quite 50 years of age. She could serve on the Supreme Court for 30 or 40 years theoretically. And so it is important for to us have a good understanding of her background that we really didn’t delve into so much during the confirmation process as solicitor general.”

Expect more of this from the other six.

As I reported earlier, she had some vehement Republican critics. Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) made a point of noting, in announcing her confirmation, that every solicitor general who’s served since 1985 endorsed her nomination.

“The confirmation of Elena Kagan to be the nation’s advocate before the Supreme Court is an historic step for women,” said Kathryn Kolbert, president of People for the American Way, in a statement released this evening. “Just over a century ago, women weren’t allowed to practice law or vote—today’s vote is a sign of how far we’ve come.  She will be a passionate and articulate advocate for our laws and Constitution.”

Despite some tough questioning about past experience and legal positions by Republicans — including Sen. Jeff Sessions (R-Ala.), who today castigated Kagan for opposing military recruiting on college campuses; and Senator Arlen Specter (R-Pa), who complained that he hasn’t been able to get enough information about Kagan’s views — she is widely expected to be confirmed, as even Specter acknowledged on the Senate floor today.

As TWI’s Kate Klonick has written, Kagan — a graduate of Princeton and Harvard Law School, a former clerk to  Supreme Court Justice Thurgood Marshall, and now Dean of the Harvard Law School — would be the first female solicitor general in U.S. history.

Kagan is also considered to be a potential future nominee to the Supreme Court.

Well, as much as civil liberties advocates might prefer that the new administration choose not to do that, Kagan could hardly have disputed that the United States has that right.  After all, the Supreme Court ruled that it does, in the landmark case Hamdi v. Rumsfeld.

In that case, relatives of Hamdi — a U.S. citizen who allegedly took up with the Taliban in Afghanistan — filed a habeas corpus petition challenging the U.S. government’s right to hold him indefinitely. But the Supreme Court’s response was clear:

The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.” If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of “necessary and appropriate force,” and therefore are authorized by the AUMF.

The AUMF is the “Authorization for Use of Military Force” that Congress passed a week after September 11, which gave the president the power to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” or “harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.”

That’s pretty broad.  And in Hamdi, the high court ruled that pursuant to the laws of war, the United States may detain those people “for the duration of these hostilities.”  It added, however, that those detainees have the right to meaningfully challenge their designation as an enemy combatant before an impartial adjudicator.

For now, that pretty much answers the legal question of detention.

Of course, Congress could amend that law, or President Obama could declare that hostilities are over, which would foreclose the government’s ability to pick up suspects around the world and imprison them indefinitely. But given Obama’s stated intentions to beef up U.S. forces in Afghanistan rather than withdraw them, he’s not likely to declare that war over anytime soon.

For better or worse, then, Elena Kagan solicitor general will have little say over the matter.  (Unless, of course, she ends up on the Supreme Court one day.)

Though not discussed in the mainstream media nearly as much as the nomination of Attorney General Eric Holder, the confirmation hearing of Kagan and Associate Attorney General-nominee Tom Perrelli was eagerly anticipated in the legal world, and with good reason. Besides likely becoming the first female solicitor general, Kagan — who for the last few years has been the dean of Harvard Law School — has been on just about everyone’s short-list as a possible appointment to the Supreme Court. After the news of Justice Ruth Bader Ginsburg’s battle with pancreatic cancer came to light last week, the legal blogosphere lit up with talk about Kagan’s potential sooner-than-expected ascent to the bench.

That’s something the members of the Senate Judiciary Committee were undoubtedly aware of while they questioned Kagan and Perrelli. While some of the minority members, particularly Sen. Tom Coburn (R-Okla.) and Sen. Jon Kyl (R-Ariz.), quibbled briefly over Kagan’s lack of experience as a litigator, most seemed in awe of her reputation as not only an incredible legal mind, but also at her heralded skill at brokering discussion between partisan parties.

While Perrelli received his share of questions, the committee’s attention seemed to rest squarely on Kagan. She joked with Arlen Specter (R-Penn.), the committee’s ranking Republican, over some or her past legal writing — going so far as to call one of her own memos “the dumbest thing I’ve ever read,” and saying that the position of Solicitor General, which is sometimes called the “10th seat on the Supreme Court,” is more like being the “37th clerk.”  Both Kagan and Perrelli, like Holder before them, emphasized their commitment to running the Justice Department without politics and righting the course from the last eight years.

Both Kagan and Perrelli still need to respond to some of the senators’ questions in writing, so a committee vote to send the nominations to the full Senate is not expected until sometime next week. The hearing lasted slightly more than two hours — and if speed is an indicator of the committee’s prerogative on these nominees, things are looking very good for the Obama administration.