Elena Kagan Confirmed to the Supreme 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.”