Sen. Lindsey Graham broke ranks with fellow Republicans in a key vote Tuesday to confirm Elena Kagan to the Supreme Court, signaling that there will be no united front for a filibuster of President Obama’s nominee.
In a 13-6 vote by the Senate Judiciary Committee, Graham of South Carolina was the sole Republican supporting Kagan to replace retiring Justice John Paul Stevens.
The defection of Graham dealt a death-blow to conservatives who were still considering the filibuster strategy to block Kagan’s confirmation. It takes 60 senators to end the parliamentary procedure, the same number of seats that Republicans have held since the election of Sen. Scott Brown of Massachusetts in January.
"Elena Kagan will be confirmed," said Sen. Patrick Leahy (D.-Vt.), chairman of the Judiciary Committee.
Even President Obama praised Graham’s decision and called the one crossover vote a “bipartisan affirmation.”
Bloggers on the political right including Powerline and Hot Air criticized Graham and suggested his vote might cost him his seat when he is up for reelection in 2014.
“By then Elena Kagan will have a substantial record through which South Carolina Republicans can assess the judgment of their senior senator, assuming he runs for re-election,” wrote Paul Mirengoff at Powerline.
The headline at Hot Air summed up their complaints: “Lindsey Graham demands to be primaried by conservative base.”
Graham said there are “plenty of reasons for a conservative to vote no,” but that Kagan’s personal background, and her strong record impressed him when it comes to the war on terrorism.
“I think she understands we are at war,” Mr. Graham said.
Many of Grahams colleagues disagreed, and said Kagan refused to allow military recruitment through official campus channels at Harvard Law School when she served as dean, a direct violation of the law.
“Her testimony was at best inaccurate, at worst, intellectually dishonest,” said Sen. Jeff Sessions (R.-Ala.), ranking member on the committee. “She knew she was defying the law.”
Republicans said that Kagan lacked any experience on the bench, and that her political record showed support for partial-birth abortion and a strong stance against gun rights.
“I am not convinced that Solicitor General Kagan will be able to shed her deeply held personal ideological beliefs, political views and experiences, and check those biases at the door of the Supreme Court,” said Sen. Chuck Grassley (R.-Iowa).
Added Sen. Jon Kyl (R.-Ariz.), “Ms. Kagan will be a judge who will let her policy preferences influence her legal judgments.”
Democrats praised Kagan and said she would be an independent justice who used common sense, and applied the law fairly.
“During her hearings she proved herself to be well qualified for the job,” said Sen. Herb Kohl of Wisconsin.
Sen. Dianne Feinstein of California praised Kagan’s sense of humor and “staying power” in “hour after hour after hour” of weeklong hearings last month. “There is no good reason to deny her appointment,” Feinstein said.
President Obama issued the statement after the vote and called it “a bipartisan affirmation of her strong performance during her confirmation hearings.”
“Elena Kagan is one of this country’s leading legal minds, and has shown throughout this process that, if confirmed, she would be a fair and impartial Supreme Court Justice who understands how decisions made by the court affect the lives of everyday Americans,” Obama said.
Republicans lost in the last election and President Obama won the right to choose his own nominee, Graham said in defending himself as the sole defector.
“The Constitution in my view puts a requirement on me as a senator to not replace my judgment for his, not to think of the 100 reasons I would pick somebody differently, or pick a fight with Miss Kagan,” Graham said.
Graham said Kagan “passed all those tests” of being a qualified person of good character who understands the difference between being a judge and a politician.
Although Sessions has stated that a filibuster is not out of the question, Republicans have not signaled they will put up an organized fight when the final vote reaches the Senate floor. Obama asked the Senate to vote on the nomination before adjourning for its August vacation.
Cartoon courtesy of Brett Noel