Obama also defended his record on Hispanic-related issues, in particular on increasing access to a college education and on appointments. The appointments of U.S. Dept. of Labor Sec. Hilda Solis (the first Hispanic woman to serve on the Cabinet) and Supreme Court Justice Sonia Sotomayor were both referenced multiple times in Obama’s speech.

Calling immigrants “[j]ob creators who came here to seek opportunity and now seek to share opportunity,” Obama argued that the current U.S. immigration system tolerates those who break the rules — undocumented immigrants and businesses that employ them — while punishing legal immigrants.

He defended himself on what Hispanic leaders say is a broken campaign pledge, “La Promesa,” to get comprehensive immigration reform on the congressional agenda. Obama said he supported the DREAM Act — a bill providing a path to citizenship to undocumented youth provided they go to college or serve in the military — and was disappointed when Senate Republicans voted against it in 2010.

“Many of the folks who walked away had previously been sponsors [of the DREAM Act],” Obama pointed out, referring to Republican U.S. senators like Lindsey Graham (S.C.) and Richard Lugar (Ind.) who worked with Democrats on immigration legislation in the past but now refuse to support legalization efforts because they say immigration has been politicized by the White House.

However, when Obama stated that he could not use the power of the executive branch alone to prevent people who qualify for the DREAM Act from being deported, the crowd broke into loud cries of “Yes you can! Yes you can.” Many have taken a recent memofrom Immigration and Customs Enforcement director John Morton urging prosecutorial discretion on immigration cases to be a sign that the administration was seeking immigration reform without going through Congress.

But Obama appeared to reject executive-driven immigration reform, telling the chanting conference attendees that he had to follow the laws as written by Congress.

“Feel free to keep the heat on me, and keep the heat on Democrats, but here’s the thing to remember: The Democrats and your president are with you. Remember who it is that we need to move in order to change the laws,” he said.

Earlier in the speech Obama also said he supported putting laid-off construction workers to work building infrastructure and schools, adding that the burden was on Congress to produce such legislation so that he could sign it. He also spent a portion of the speech discussing ongoing deficit talks, restating his belief that new revenue should accompany meaningful spending cuts.

However, there will still be one section of the building where partisan divides are apparent. Six of the nine Supreme Court justices are set to attend tonight’s speech, with all three absentees hailing from the conservative wing of the court.

Bloomberg reports:

Kathy Arberg, the Supreme Court’s spokeswoman, said that six justices are planning to attend tonight, though she wouldn’t specify which ones. Justice Samuel Alito is in Hawaii, and two other Republican-appointed justices, Antonin Scalia and Clarence Thomas, have strongly suggested in public comments that they won’t go.

Only two Republican appointed justices, Chief Justice John Roberts and Anthony Kennedy, will be in attendance whereas all justices nominated by a Democratic president will be at the speech.

The division between Obama and the conservative justices was readily apparent during last year’s State of the Union. In one segment of his speech, President Obama criticized the court’s ruling in Citizens United, to which Alito visibly responded by shaking his head and mouthing the phrase “not true.” After that interaction, some questioned whether it was proper for the supposedly impartial Supreme Court justices to attend the State of the Union speech. Nevertheless, the absence of the court’s three most conservative members at Obama’s speech will only increase the already-clear divide of the court.

Elena Kagan was confirmed to the Supreme Court Thursday in a 63-37 Senate vote. (Pete Marovich/ZUMApress.com)

After a sleepy confirmation process drowned out by debates over financial regulation, unemployment insurance, the wars in Iraq and Afghanistan and the Gulf of Mexico oil spill, the Senate this afternoon confirmed Elena Kagan as the next Supreme Court justice, by a vote of 63 to 37.

[Law1] Five Senate Republicans — Lindsey Graham (S.C.), Judd Gregg (N.H.), Olympia Snowe (Maine), Dick Lugar (Ind.) and Susan Collins (Maine) — crossed the aisle to support Kagan as the successor to Justice John Paul Stevens. One Democrat, Sen. Ben Nelson (Neb.), opposed the confirmation.

When Kagan was first announced as the next nominee to the Supreme Court, Republicans promised to mount a strong resistance to the legal scholar, then dean of Harvard Law School. Senate Minority Leader Mitch McConnell (Ky.) cited Kagan’s lack of judicial experience and past positions in the Clinton and Obama administration as roadblocks, calling her “someone who has worked tirelessly to advance a political agenda.”

Republicans also raised questions about Kagan’s role in barring military recruiters from Harvard’s campus. Kagan held that Don’t Ask, Don’t Tell — the military policy letting gay and lesbian officers remain in service if they remain in the closet — violated the school’s anti-discrimination policies.

Many were also taken aback by Kagan’s previous mocking of the Senate’s Supreme Court confirmation process itself. In an article published in the University of Chicago Law Review, Kagan had once criticized the nomination process as having become a “vapid and hollow charade.” (One could reasonably describe Kagan’s own confirmation hearings as “vapid and hollow,” at least at times. Sen. Amy Klobuchar (D-Minn.), for instance, asked Kagan about the “Twilight” books and films.)

Despite Kagan’s quiet confirmation hearings, she earned five fewer Senate votes than Justice Sonia Sotomayor, who gained confirmation exactly one year ago today. Numerous political observers chalked up Republican dissent to increased political polarization leading up to a hard fought midterm election in November.

When Kagan is confirmed, the Supreme Court will for the first time in its history have three female justices. (Sotomayor and Justice Ruth Bader Ginsburg are the others.) “It took nearly 200 years before the Court welcomed Sandra Day O’Connor as its first woman, and more than a decade longer before Ruth Bader Ginsburg would join her as its second,” Senate Majority Leader Harry Reid (D-Nev.) said today, lauding the confirmation. “That’s progress. It’s not yet completely equitable in a nation where women represent more than half the population, but it’s progress.”

Reid also took a moment to praise Kagan’s advocacy on behalf of individual citizens in an era of outsize corporate influence — an oblique jab at the current court’s decision in Citizens United and other pro-business cases.

“We need a voice on the Supreme Court who remembers and reveres the rights of individuals — not because people are always right and corporations are always wrong — but because the argument of even the poorest citizen should be heard just as loudly, with the same patience and with the same impartiality as that of the richest firm,” Reid said. “Elena Kagan has demonstrated time and again that she understands that, too.”

Sen. Scott Brown (R-Mass.), a moderate Republican who some had expected to vote for Kagan, announced shortly before the vote that he would oppose her. “The best umpires, to use the popular analogy, must not only call balls and strikes, but also have spent enough time on the playing field to know the strike zone,” Brown said in a statement today. “Therefore, I cannot support Elena Kagan’s nomination.”

Sen. Lindsey Graham (R-S.C.), on the other hand, announced in late July that he would support President Obama’s choice of Kagan, all but guaranteeing a primary challenge in 2014 from outraged conservatives in his home state of South Carolina. “She will serve this nation honorably,” Graham said in July. “It would not have been someone I would have chosen but the person who did choose, President Obama, did choose wisely.”

Alexander is the 21st Republican senator to publicly oppose Kagan, so it’s not a surprise in that respect. But he is the first of the nine Republican senators who voted for Justice Sonia Sotomayor last year to come out against Obama’s second nominee to the Court. Two other GOP senators who voted for Sotomayor — Lindsey Graham (S.C.) and Richard Lugar (Ind.) — have announced they will vote for Kagan.

In a statement, Alexander said his chief reason for opposing Kagan now — as it was when he opposed her confirmation as Solicitor General last year — was her decision as dean of Harvard Law School to restrict military recruiters’ access to campus facilities.

“In denying military recruiters equal access to Harvard Law students, Ms. Kagan ignored Harvard’s obligations under federal law,” he said. “Instead, she acted based upon what she thought the law should be. The use of her authority as dean in that way leads me to believe that she would use her authority as a Supreme Court Justice to advance her own policy preferences.”

This issue became a major point of contention during Kagan’s confirmation hearings several weeks ago, with witnesses appearing before the Senate Judiciary Committee to defend and criticize Kagan’s actions. During her testimony, the nominee defended the restrictions as a compromise that honored Harvard’s non-discrimination policies — the military was in violation of these policies because of the “Don’t Ask, Don’t Tell” ban — while also adhering to federal laws that require military recruiters be allowed access to schools that receive federal funding.

Assuming Senate Democrats maintain a united front — Ben Nelson (Neb.) appears to be the only wavering member of the caucus at this point — Kagan will have at least 61 votes in her favor, meaning Senate Republicans will not be able to launch a filibuster.

Update at 3:22 p.m.: Sen. Susan Collins (R-Maine), another Sotomayor supporter, announced today she will vote for Kagan. This gives Kagan a likely 62 votes in the full Senate.

A C-SPAN-commissioned poll released today shows just 19 percent of people surveyed could name Kagan as the nominee. That figure may appear unsurprising, given that a Findlaw.com poll from earlier this month found that only 35 percent of people could name even one of the current justices. However, a similar C-SPAN poll conducted just prior to Justice Sonia Sotomayor’s confirmation hearings showed a far higher percentage — 43 percent — could then name her as the nominee.

C-SPAN did not speculate in its press release on why Kagan’s name recognition is so much lower than Sotomayor’s was at this point in the confirmation process. I will only venture to guess that a major factor here is that Sotomayor got a great deal of media attention for being the first Hispanic Supreme Court nominee.

Recent polls show generally tepid support for Kagan. In C-SPAN’s poll, 38 percent of respondents supported her, 30 percent didn’t and 33 percent didn’t have an opinion. Kagan’s rating was higher in a USA Today/Gallup poll from earlier his month, giving her an approval spread of 46-32 percent. Rasmussen Reports released a poll yesterday that gave her a negative approval rating — 35 percent thought she should be confirmed, while 42 percent did not.

Updated at 4:15 p.m.

The dismissal by the Fifth Circuit Court of Appeals in Comer v. Murphy Oil came after half of the court’s 16 judges recused themselves from hearing the appeal, effectively negating an October decision by a three-judge panel on the same court that allowed the case to proceed. The Comer class action suit was filed by Gulf Coast residents seeking financial damages from more than two dozen oil and coal companies for the local havoc wreaked by Hurricane Katrina, which the plaintiffs argued was exacerbated by the effects of global warming.

The plaintiffs now must decide whether to seek a hearing in the Supreme Court, an outcome deemed all but inevitable by the National Association of Manufacturers (NAM) in a Friday blog post reacting to the dismissal.

“Expect more appeals and suits from plaintiffs hoping to hit the jackpot and environmental activists trying to create a carbon-command-and-control economy through the courts,” NAM’s Carter Wood wrote. The group is a vocal critic of congressional climate legislation and filed a brief supporting an en banc hearing of the Comer case by the full Fifth Circuit after the initial ruling allowing the case to proceed.

Greenwire reported today (sub. req’d.) that the high number of Fifth Circuit recusals in Comer — generally an indication that judges have personal ties to the companies or law firms involved, such as stock ownership — “infuriated environmentalists” who viewed the moves as a sign that industry has all but captured the appeals court in the Gulf region. But a legal analysis published last month by the firm McGuire Woods suggested that the nation’s highest court could face similar recusal hiccups in deciding whether to hear a Comer appeal:

[T]he mass recusal of members of the 5th Circuit in Comer begs the question as to whether such recusals would be an issue for the U.S. Supreme Court as well. Initial analysis suggests it would. Justice Samuel Alito has recused himself on several occasions from cases involving ExxonMobil due to his ownership of its stock. See, e.g., Exxon Shipping v. Baker; American Isuzu v. Ntsebeza. Likewise, Justice Steven Breyer has recused himself from cases involving BP due to his ownership of its stock. See, e.g., New Jersey v. Delaware; Morgan Stanley Capital Group v. Public Utility Dist. 1. Both ExxonMobil and BP are defendants in the Comer suit.

Similarly, Justice Sonia Sotomayor would also likely recuse herself due to her participation in the Connecticut v. American Electric Power case [another high-profile climate case] when she was on the 2nd Circuit. … Indeed, it may not even be possible for the U.S. Supreme Court to hear any appeal in Comer.

The recusal issue, as Greenwire notes, could also come into play as lawsuits stemming from BP’s role in the Deepwater Horizon disaster move forward. We have a call in to the plaintiffs’ counsels in the Comer case, seeking word on whether they plan to petition for a Supreme Court hearing, and will update this post as more becomes known.

In his introductory speech, Obama repeatedly emphasized Kagan’s “independence,” citing her “openness to a broad array of viewpoints” and her effort to court conservatives while serving as dean of Harvard Law School.

Both Kagan and Obama also highlighted Kagan’s connection to everyday people, a characteristic much discussed during the nomination of Justice Sonia Sotomayor. Obama noted that Kagan’s parents, now deceased, were both immigrants to the U.S., and that Kagan long served as an educator and most recently worked to defend “ordinary citizens” in cases before the Supreme Court.

Kagan said her commitment to public service stems from the example set by her parents. Her mother worked as a public school teacher and her father defended tenants as a housing lawyer. “My parents’ lives and their memory remind me every day of the impact public service can have,” Kagan said.

“Thank you for this honor of a lifetime,” Kagan told the president.

While one might have expected Washington to recover some civility after the mudslinging of the campaign season, the year instead saw the rise of the “just asking” paranoiac style on Fox News, the return of serial health care misinformer Betsy McCaughey, and the accusation “You lie!” hurled at the President as he addressed Congress. No untruths were more flagrant, pervasive or distracting, however, than the five listed here.

Click here to begin slideshow.

Yesterday’s ruling involved an employment case. Norman Carpenter had sued Mohawk Industries after he was fired, claiming he was only fired because he’d complained that the company was hiring undocumented workers. Unbeknownst to Carpenter, the company was already being sued for allegedly trying to drive down wages by doing just that. Carpenter claimed one of Mohawk’s lawyers pressured him to recant his claims, and that he was fired because he refused.

The conflict heated up when Carpenter tried to get documents revealing what was said in that conversation with the company’s lawyer. The company refused to turn them over, citing attorney-client privilege. But the court said the company had waived that privilege already in various ways, and ordered them turned over. The company appealed.

In the appeal, the U.S. government filed a friend-of-the-court brief supporting Carpenter, but went out of its way to argue that while the employer should not have the right to an immediate appeal, if the government were involved and the disclosure involved state secrets, then the government should have that right. According to the Justice Department:

Although denials of the attorney-client privilege do not meet the Court’s stringent standards for collateral order review, denials of certain governmental privileges—in light of their constitutional grounding, rare invocation, and unique importance to governmental functions—should qualify for immediate appealability. In particular, the ordered disclosure of a Presidential communication or state secret would more directly and irremediably harm the purpose of the corresponding privilege (i.e., preserving confidentiality of top-level Executive Branch communications or protecting national security) than would disclosure of attorney-client privileged information.

The Justice Department seems to have been trying to get the court to sneak a statement into its opinion about the superior importance of executive branch communications or secrets, as opposed to an ordinary run-of-the-mill company’s privilege.

Sotomayor, in her first opinion of the new term, declined to do that.

“I did not closely follow the Sonia Sotomayor nomination,” said Fiorina. “I was battling breast cancer. But I probably would have voted for Sotomayor. She seemed qualified.”