Kagan Clears Committee on Partisan Vote

By Kenneth Jost
Supreme Court Editor, CQ Press
And Seth Shapiro
Editorial Intern, CQ Researcher

Supreme Court nominee Elena Kagan cleared the first hurdle toward confirmation on Tuesday with the Senate Judiciary Committee recommending approval of the nomination on a nearly party-line vote of 13-6.

Sen. Lindsey Graham of South Carolina was the only Republican to join all Judiciary Committee Democrats in voting to approve President Obama’s selection of Kagan to succeed retiring Justice John Paul Stevens. Midway through a two-and-a-half-hour meeting, Graham said he disagreed with Kagan’s judicial philosophy, but he noted it was not his place to stonewall her confirmation. “I understood we lost; President Obama won,” Graham said.

Democrats, led by committee chairman Patrick Leahy, D-Vt., praised Kagan’s knowledge of the law, ability as a consensus-builder, and willingness to fairly apply the law. “Her credentials and legal abilities have been extolled by many,” Leahy said, citing support for Kagan among liberal and conservative legal-minds, including Miguel Estrada, a well-known conservative lawyer whose nomination by President George W. Bush for a federal court was filibustered by Senate Democrats.

The committee’s ranking Republican, Alabama’s Jeff Sessions, led the GOP attack by criticizing Kagan as having been “at best inaccurate” and at worst “dishonest” in explaining her role as dean of Harvard Law School in limiting access of military recruiters because of the military’s “don’t ask don’t tell policy." Sessions also faulted Kagan for what he called "her lack of a robust legal experience.”

Other Republicans followed by criticizing Kagan for her policy positions as a White House adviser under President Bill Clinton and her handling of some cases as solicitor general in the Obama administration, including a pending challenge to the "don’t ask don’t tell" policy.

Republicans and some Democrats criticized Kagan for evasive answers during 17 hours of testimony before the committee. Sen. Herb Kohl, D-Wis., said that her answers were frequently so general that it was “difficult to distinguish her answers from those of other nominees.” But Sen. Charles Schumer, D-New York, said Kagan had been more candid than previous nominees, including Chief Justice John G. Roberts Jr.

Republicans criticized Kagan, who has no prior judicial experience, as a likely judicial activist on the court. Democrats countered by citing several Roberts Court rulings as activist, including the controversial campaign finance case known as Citizens United that allows unlimited political spending by corporations and unions.

Democrats also claimed that Kagan’s unique background would provide her with a vital perspective that would differ from the other justices on the bench. Sen. Amy Klobuchar, D-Minn., noted Justice Antonin Scalia’s comment that Kagan’s lack of judicial experience was a positive attribute since she would be the only one on the court that has not served as a judge.

At the White House, President Obama praised the committee’s vote as “a bipartisan affirmation of [Kagan’s] strong performance during her confirmation hearings.”

The committee’s vote sets the stage for a Senate floor vote on Kagan’s nomination before Congress begins its August recess. If approved by the full Senate body, Kagan would be the fourth woman justice appointed to the Supreme Court; and for the first time, three female justices would serve on the bench at the same time. And, at age 50, she would also be the youngest justice to join the Court since Clarence Thomas was appointed at age 43 in 1991.

With Democrats holding a 59-41 majority, Congress watchers say Kagan’s confirmation is a foregone conclusion. “Elena Kagan will be confirmed. She will go on the Supreme Court,” Leahy told reporters after the meeting. Sessions declined to predict how many Republicans would vote to confirm Kagan. Nine Republicans joined Democrats one year ago in voting to confirm then-judge Sonia Sotomayor by a vote of 68-31.