Senate confirms Kagan as 112th justice

WASHINGTON — The Senate confirmed Elena Kagan as the 112th justice of the U.S. Supreme Court Thursday, creating a historic, liberal, three-woman bloc likely to vote together much of the time.

Elena Kagan
Alex Brandon

FILE - In this June 30, 2010 file photo, Supreme Court nominee Elena Kagan testifies on Capitol Hill in Washington, before the Senate Judiciary Committee hearing on her nomination. On Thursday, the Senate confirmed Kagan as the 112th justice. (AP Photo/Alex Brandon, File)

But the 63-37 vote suggested that the bitter partisan divide that has plagued legislative efforts on Capitol Hill is increasingly infecting the high court nomination process.

Kagan, the daughter of a tenants' lawyer and a teacher who was raised in New York City's Upper West Side, worked in the Clinton White House and headed the faculty at Harvard Law School before joining the Obama administration as its advocate before the Supreme Court. She watched the Senate proceedings with her colleagues at the solicitor general's office.

Only five Republicans crossed party lines to support Kagan, four fewer than those who last year voted to confirm Justice Sonia Sotomayor. As a result, the tally in Kagan's favor ranks among the lowest among justices in recent history despite support from some prominent legal conservatives.

Kagan, 50, the solicitor general, replaces retired Justice John Paul Stevens and will serve as the nation's fourth female justice. When she is sworn in at a ceremony at the Supreme Court on Saturday, three women will sit on the court for the first time.

Sen. Patrick Leahy of Vermont, chairman of the Senate Judiciary Committee, called that achievement "a milestone that is long overdue."

President Barack Obama, who named Kagan to the court in May, praised the Senate vote. "Today's vote wasn't just an affirmation of Elena's intellect and accomplishments. It was also an affirmation of her character and her temperament; her open-mindedness and even-handedness; her determination to hear all sides of every story and consider all possible arguments," he said.

Because of the commanding majority Democrats hold in the Senate, Kagan's confirmation was almost never in doubt. But most Republicans opposed her despite their struggle to find a line of attack that captured the public's attention. Democrats contended that the GOP's opposition to Kagan came less a result of her qualifications and more as a product of a sustained strategy to obstruct the president's agenda at every turn.

"There is no one President Obama could have nominated who would not be opposed by some," Leahy said on the floor prior to the vote.

Republicans, however, countered that Kagan's lack of judicial and courtroom experience and her background as a lawyer and policy adviser in the Clinton and Obama administrations rendered her unfit for the court. They argued she would view cases through the lens of a political progressive.

Kagan is "someone who has worked tirelessly to advance a political ideology — often at the expense of the law," Sen. Mitch McConnell of Kentucky, the Senate minority leader, argued prior to the vote.

The final vote came after 12 weeks of consideration and three days of floor debate. To mark the significance of the occasion, senators voted while staying at their desks in the Senate chamber. Republicans supporting Kagan were Sens. Susan Collins and Olympia Snowe of Maine, Lindsey Graham of South Carolina, Judd Gregg of New Hampshire and Richard Lugar of Indiana. Ben Nelson of Nebraska was the only Democrat to oppose her.

The vote in Kagan's favor served as a rebuke of sorts of the National Rifle Association, which implored senators to reject her over concerns about her views on gun rights. The powerful lobby had warned it would retaliate against her supporters in the coming congressional elections.

Kagan was also criticized for her efforts as dean of Harvard Law School to bar military recruiters from using career services resources at the school over opposition to the Pentagon's "don't ask, don't tell" policy toward gay and lesbian soldiers.

Opinion polls showed lukewarm public support for the nominee, but in the end, none of the GOP's lines of attack could torpedo the nomination. But Kagan became the third consecutive high court pick, after Sotomayor and Justice Samuel Alito in 2006, to receive fewer than a three-fourths majority in the Senate, a trend that suggests that, in a departure from historical practice, the nominations are becoming increasingly politicized and that nominees are now being treated like contentious pieces of legislation.

"The era of clearly qualified nominees getting broad bipartisan support in the Senate will officially end with this vote," said Douglas Kendall, president of the Constitutional Accountability Center, a Washington think tank, prior to Kagan's confirmation.

Kendall said that the increasingly polarized confirmation process would not damage the public's view of Kagan's work as a justice. Democrats, he said, "tried the same general strategy with the Alito nomination with a stronger case, higher stakes and more media focus, and I don't think very many Americans now view Alito to be an illegitimate justice."

But Curt Levey of the Committee for Justice, which opposed Kagan's nomination, disagreed. "The confirmation process inevitably resulted in Kagan losing some legitimacy in the eyes of the public," he said. That, he argued, "will make Americans more skeptical of any controversial decisions she's part of."

Sen. Amy Klobuchar of Minnesota, a former prosecutor who now sits on the Judiciary Committee, said she did not believe the attacks would diminish Kagan's effectiveness, but she said she worried about the mounting partisanship undermining "people's faith in the court" as an independent branch.

"In that way," she said, "it can be damaging to the institution."

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