Kagan Confirmed; Takes Oaths Saturday

By Kenneth Jost
Supreme Court Editor
      Elena Kagan will be sworn in on Saturday (Aug. 7) as the 112th justice of the Supreme Court following the Senate’s 63-37 vote on Thursday confirming her for the post almost completely along party lines.
      All but one of the Senate’s 57 Democrats joined the two Democratic-leaning independents and five Republicans in confirming Kagan Thursday afternoon following three days of partisan debate over her nomination.
      Nebraska’s Ben Nelson, the only Democrat to break ranks on the nomination, cited opposition from his constituents and Kagan’s lack of prior judicial or legal experience in explaining his decision to vote against her.
      The five Republicans who voted for her — South Carolina’s Lindsey Graham, New Hampshire’s Judd Gregg, Indiana’s Richard Lugar, and Maine’s two senators, Susan Collins and Olympia Snowe — generally said they were deferring to President Obama’s selection of Kagan to succeed the retiring Justice John Paul Stevens.
      Kagan, 50, will take two oaths of office in ceremonies at the Supreme Court on Saturday afternoon. Chief Justice John G. Roberts Jr. will first administer the constitutional oath of office in a private ceremony to be attended by members of Kagan’s family. He will then administer the judicial oath of office in a second ceremony that will be attended by what the Supreme Court’s public information office called “a small gathering of Elena Kagan’s family and friends.”
      Republicans maintained strong opposition to Kagan’s nomination up to the end of the debate, depicting her as a potential judicial activist. They cited Kagan’s actions as associate White House counsel and later deputy domestic policy adviser under President Bill Clinton in warning that as a justice she will be hostile to Second Amendment gun rights and to legislated restrictions on abortions. They also criticized her actions as dean of Harvard Law School in limiting official access for military recruiters for a period because of her opposition to the congressionally mandated “don’t ask, don’t tell” policy limiting service by gays and lesbians.
      GOP senators also complained about Kagan’s lack of legal experience, including no judicial service and no courtroom advocacy before assuming her current position of U.S. solicitor general. In his final remarks, Senate Minority Leader Mitch McConnell of Kentucky reeled off Kagan’s record of supporting Democratic candidates and serving in Democratic administrations to charge that she had “advanced a political ideology . . . at the expense of the law.”
      Democratic senators praised Kagan’s academic credentials and accomplishments, including her selection as the first female dean of Harvard Law School and her role in quieting ideological divisions among the faculty. They defended her actions on military recruiters, citing her testimony that recruiters had access to Harvard students through a student veterans’ group. They also said that her White House experience would be an asset on the court. In addition, they cited Kagan’s pledge in her opening statement before the Senate Judiciary Committee to decide cases impartially and “modestly,” deferring to legislative and executive branches on policy matters.
      In his final remarks, Senate Majority Leader Harry Reid of Nevada emphasized that Kagan’s confirmation will mean that the court includes three woman for the first time, making it “the most inclusive court” in history. Currently, two women serve on the court: Ruth Bader Ginsburg, appointed by Clinton in 1993, and Sonia Sotomayor, appointed by Obama in 2009.
      Kagan received five fewer votes than Sotomayor received one year earlier as Obama’s first nominee to the high court. Congress watchers cited election-year politics as one explanation for the shortfall.
      Kagan is the fourth new justice to join the court in the past five years after a long, eleven-year period with no changes in the court’s membership. President George W. Bush named Roberts and a second conservative, Samuel A. Alito Jr., in 2005. Roberts was confirmed with 78 votes, Alito in early 2006 with 58 votes.
      Despite the changes, the court appears likely to remain closely divided along conservative-liberal lines. Roberts, Alito, Antonin Scalia and Clarence Thomas generally vote along conservative lines. Kagan is expected to join Sotomayor, Ginsburg, and Stephen G. Breyer in a liberal-leaning bloc. Justice Anthony M. Kennedy, a moderate conservative, often holds a decisive vote on ideologically charged cases.
      A formal investiture for Kagan will be held on Friday, Oct. 1, three days before the court opens its new term on the traditional first Monday in October —
Oct. 4.
      The court has thus far accepted about thirty-eight cases for review during the new term. Kagan will have to recuse herself from several because she participated in the government’s role in the case while solicitor general. Kagan’s recusal will create the possibility of leaving some cases unresolved if the remaining eight justices are evenly divided four to four.
      No additional changes in the court’s membership are expected in the near future. Ginsburg, who is 77, and Kennedy, who is 74, have both given interviews in recent weeks saying they have no intention of retiring any time soon. Scalia and Breyer, the other justices in their 70s, also are widely expected to stay on the court for the foreseeable future.