WASHINGTON – The Senate confirmed Elena Kagan’s nomination to the Supreme Court Thursday, giving President Barack Obama his second appointment to the high court in two years while leaving its ideological balance unchanged.
The vote of 63-37 was largely along party lines, with five Republicans, including Maine Sens. Susan Collins and Olympia Snowe, supporting the nominee and one Democrat, Ben Nelson of Nebraska, opposing her.
In addition to Snowe and Collins, Republicans supporting Kagan were Richard Lugar of Indiana, Judd Gregg of New Hampshire and Lindsey Graham of South Carolina.
Kagan, 50, a former Harvard Law School dean, will be the nation’s 112th justice, fourth woman and just the sixth member of the court who isn’t a white male. For the first time, the nine-member court will have three women as she joins Justices Sonia Sotomayor, Obama’s first appointee, and Ruth Bader Ginsburg.
“No one can question the intelligence or achievements of this woman,” said Senate Judiciary Committee Chairman Patrick Leahy, a Vermont Democrat. “No one should question her character either.”
Opponents described her as a political activist who lacks judicial experience. The ranking Republican on the Senate Judiciary Committee, Jeff Sessions of Alabama, said she “does not have the gifts and the qualities of mind or temperament” to be a justice.
Kagan is the first woman to be solicitor general, representing the Obama administration before the Supreme Court. Her nomination to the high court underscores Obama’s support of diversity on the federal bench. Sotomayor is the first Hispanic on the Supreme Court.
Kagan’s nomination in May sparked a summer of partisan debate over the role of judges and the sharply divided high court led by Chief Justice John Roberts.
In succeeding Justice John Paul Stevens, who retired after 35 years, Kagan is likely to take his place in the court’s liberal wing. That would leave intact the court’s 5-4 conservative majority on such issues as abortion, gun rights and campaign finance.
Kagan’s confirmation was never in doubt, given Democrats’ 59-41 control of the Senate.
A New York native, Kagan worked for four years in President Bill Clinton’s White House as a lawyer and policy adviser. She served as dean of Harvard Law School from 2003 to 2009, and in the late 1980s was a law clerk to Supreme Court Justice Thurgood Marshall.
Opponents attacked her decision as law school dean to bar military recruiters from Harvard’s campus to protest the Pentagon’s ban on openly gay troops. Kagan supported a lawsuit seeking to force the government to stop withholding funds from schools that blocked the recruiters.
Many Republicans pointed to her lack of judicial and litigation experience. Kagan will be the first person on the high court without prior experience as a judge since the appointments by President Richard Nixon of Lewis Powell and William Rehnquist almost 40 years ago.
“The 39 previous justices who lacked judicial experience had an average of 21 years of legal experience,” said Sen. Orrin Hatch, a Utah Republican. “In other words, Supreme Court justices have had experience behind the bench as a judge, before the bench as a lawyer or both. Ms. Kagan has neither.”
Sen. Dianne Feinstein, D-Calif., said Kagan’s professional credentials are a plus.
“In my view, judicial experience is a useful background, but it is only one of many, and it is a background that is well represented on the court today,” she said.
One of the Republicans who backed her, Sen. Lindsey Graham of South Carolina, said the Constitution’s authors intended for senators to give deference to a president’s judicial selections. Kagan is experienced and in the mainstream and should therefore join the court, he said.
“She is not someone I would have chosen, but it is not my job to choose,” Graham said. “It is President Obama’s job. He earned that right.”
At her confirmation hearings, Kagan testified that she believes justices should seek more consensus when possible, while refusing to criticize decisions reached by the court under Roberts.
She also made clear she doesn’t share the “originalist” approach of Justices Antonin Scalia and Clarence Thomas, who say the Constitution should be interpreted in line with the meaning intended by the founding fathers. She also said that court precedents affirming abortion rights and those of gun owners are established law.
Kagan took issue with an analogy made by Roberts during his 2005 confirmation hearing, when he likened judges to baseball umpires who call balls and strikes. That is “correct in several important respects but like all metaphors it does have its limits,” Kagan said, adding that it suggests judging is a “robotic enterprise.”
Kagan was denounced by anti-abortion groups including Americans United for Life. The National Rifle Association ran ads opposing her, in part because as a law clerk to Marshall she wrote in a memo that she was “not sympathetic” to a man who said his constitutional rights were violated when he was convicted for carrying an unlicensed pistol.