Elena Kagan was confirmed to the Supreme Court on Thursday despite an intense lobbying effort by key Republican senators to defeat President Barack Obama’s nominee to the high court.
The 63-37 vote was mostly along party lines, however five Republicans broke ranks to support Obama’s nominee, while Sen. Ben Nelson of Oklahoma remained the lone Democrat to oppose Kagan, who now becomes the third woman to join the current bench.
|Cartoon courtesy of Brett Noel|
Republicans argued that the 50-year-old New Yorker spent most of her career as a political activist and never actually served as a judge.
Sen. Jeff Sessions (R.-Ala), ranking member of the Judiciary Committee, led the fight to oppose Kagan and said he lacked confidence that she could set aside her “progressive” political ideology.
“The American people will not easily forgive this Senate if we confirm Ms. Kagan to the Supreme Court,” Sessions said just minutes before the vote.
“She will rewrite by judicial fiat to advance what President Obama says is a broader vision of what America should be,” Sessions said.
The “broader vision” of Obama to shape his court was a theme also seized on by Senate Minority Leader Mitch McConnell (R.-Ky.).
“The President picked precisely the kind of judge he said he would,” said McConnell, one who has a “pattern of political activity.”
“Kagan is not steeped in the practice of law, but in the art of politics,” McConnell said.
Sessions suggested his only litmus test for a Supreme Court justice was the Constitution. “Enforce it as written, whether you like it or not,” Sessions said.
Kagan’s Republican supporters who helped give Obama a political victory before the summer recess included Susan Collins and Olympia J. Snowe of Maine, Judd Gregg of New Hampshire, Lindsey Graham of South Carolina and Richard G. Lugar of Indiana.
Sen. Scott Brown (R. -Mass.), Kagan’s home-state senator, was one of the last holdouts announcing his opposition just hours before the vote in a written statement:
“I believe nominees to the Supreme Court should have previously served on the bench. Lacking that, I look for many years of practical courtroom experience to compensate for the absence of prior judicial experience. In Elena Kagan’s case, she is missing both,” Brown said.
Democrats argued that Kagan would bring consensus to a court they say is polarized by conservatives.
Sen. Patrick J. Leahy (D.-Vt.), said Kagan would fairly apply the law, use judicial restraint, and common sense, not politics or an ideological agenda.
“Her qualifications, intelligence, temperament and judgment will make her a worthy successor to Justice John Paul Stevens,” Leahy said.
Kagan’s confirmation will not likely change the court’s ideological balance of power, which leans conservative 5-4.
“There was no one President Obama could nominate who would not be opposed by some,” said Leahy, who did not name names but accused fellow senators of making “insulting” statements during the 12-week nomination process.
Sen. Christopher Dodd (D.–Conn.) agreed and said Kagan was “subjected to intense levels of scrutiny” during the confirmation period.
“History will judge whether the senate fairly considered the nomination,” Leahy said. “Her nomination really is worthy of bipartisan support.”
Wendy Wright, president of Concerned Women for America, said she fears Kagan will “treat the Constitution as optional, and re-write the facts to fit her agenda, all to the detriment of our country.”
“Miss Kagan’s presence at the Supreme Court will be a constant reminder to conservatives of the clear and present danger we face if we are not engaged in the political process to ensure only qualified people of character are in key positions,” Wright said.
Americans United for Life Action also opposed Kagan because of her support of partial-birth abortion.
“Elena Kagan will emerge as one of the Supreme Court’s most agenda-driven, reliably pro-abortion Justices,” said Dr. Charmaine Yoest, the group’s president. “The American people want fair and impartial judges, and Justice Kagan’s negative impact will be felt for decades to come.”