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Breaking News: Senate votes to confirm Elena Kagan, 63-37

Kagan at her nomination

Kagan at her nomination

The New York Times reports:

The Senate confirmed Elena Kagan to a seat on the Supreme Court on Thursday, giving President Obama his second appointment to the high court in a year, and a political victory as the Senate neared the end of its business for the summer.

Ms. Kagan, a former dean of the Harvard Law School and a legal adviser in both the Clinton and Obama administrations, was approved by a vote of 63 to 37 after hearings and floor debate that showcased competing views of Democrats and Republicans about the court, but exposed no significant stumbling blocks to her confirmation.

She becomes the fourth woman ever named to the court, and will join two other woman currently serving, including Justice Sonia Sotomayor, the first Obama administration nominee, who was confirmed almost exactly one year ago.

“Her qualifications, intelligence, temperament and judgment will make her a worthy successor to Justice John Paul Stevens,” Senator Patrick J. Leahy, Democrat of Vermont and chairman of the Judiciary Committee, said of Ms. Kagan.

Five Republicans joined 56 Democrats and two independents in supporting the nomination; 36 Republicans and one Democrat, Senator Ben Nelson of Nebraska, opposed her. In a sign of the import of the moment, senators were asked to record their votes from their desks.

The sharp partisan divide over the nomination illustrated the increasing political polarization of fights over high court nominees, who in years past were backed by both parties in the absence of some disqualifying factor. Ms. Kagan received fewer Republican votes than Justice Sotomayor, who was supported by nine in her 68-31 confirmation on Aug. 6, 2009. Democrats balked at President George W. Bush’s nominee, Samuel A. Alito Jr., with only four endorsing him in a 58 to 42 vote in January 2006.

At age 50, Ms. Kagan could have a long tenure on the court, but her confirmation is not seen as significantly altering the current, closely divided ideological makeup of the court, which is often split 5-4 on major decisions.

Most Senate Republicans challenged Ms. Kagan’s nomination until the end, asserting that she lacked sufficient experience and had unfairly stigmatized the military by supporting a ban on recruiters at Harvard Law over the military’s ban on gays serving openly. Republicans said her record in both Democratic administrations and her ties to Mr. Obama suggested that she would be an “activist” judge with a liberal bent who would try to imprint her own political values on court opinions.

Senator Mitch McConnell of Kentucky, the Republican leader, portrayed her as a potential “rubber stamp” for the Obama White House.

“We are left with the same core concern, that Ms. Kagan would ally herself not with the Constitutional liberties of all Americans but with a big-government agenda and the president who nominated her,” Senator Jeff Sessions of Alabama, the senior Republican on the Judiciary Committee, said.

Republicans said the need to interpret the Constitution strictly was reaffirmed, in their view, by this week’s federal court ruling against a voter-imposed ban on same-sex marriage in California, a case that is considered likely to reach the Supreme Court eventually.

Republicans also sought to raise questions about Ms. Kagan’s view of the Second Amendment right to bear arms — a crucial issue for many Republican and independent voters. But Democrats defended her as a brilliant legal scholar who would be a strong addition to the court.

Ms. Kagan was most recently the solicitor general in the Obama administration, making her the administration’s advocate before the Supreme Court. In that role she argued her first case before her soon-to-be fellow justices last year.

Her previous courtroom experience was limited and some Republicans cited her lack of time on the bench as a chief factor in their opposition, including Senator Scott Brown, the Massachusetts Republican, who on Thursday announced he would oppose the nomination of the woman he introduced at her confirmation hearings.

“When it comes to the Supreme Court, experience matters,” Mr. Brown said in a statement. “No classroom can substitute for the court itself, where decisions are made that affect the day-to-day lives of American citizens, and where one’s judicial character and temperament is shaped in favor of the fair and just application of the law.”

But Democrats dismissed that argument, with Senator Christopher J. Dodd, Democrat of Connecticut, saying that more than one-third of the 111 Americans who have served on the court were not previously judges, including former Chief Justice William Rehnquist, whose tenure was highly regarded by many Republicans.

“I would therefore submit to my colleagues that there are other important measures of the quality of a Supreme Court nominee besides the depth of his her experience on the bench,” Mr. Dodd said.

Congrats to Justice Kagan!!

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Anthony Clark Arend is Professor of Government and Foreign Service at Georgetown University and the Director of the Master of Science in Foreign Service in the Walsh School of Foreign Service.

Commentary and analysis at the intersection of international law and politics.