Senate Committee Approves Elena Kagan: How the Senators Voted

The Senate Judiciary Committee approved Supreme Court nominee Elena Kagan 13 to 6 Tuesday, with one Republican joining 12 Democrats. Ms. Kagan now faces a confirmation vote from the full Senate later this month.

The Senate Judiciary Committee on Tuesday endorsed Supreme Court nominee Elena Kagan, forwarding her nomination to the full senate for debate and a confirmation vote later this month.

The committee vote was 13 to 6, with all but one Republican committee member voting against her.

Sen. Lindsey Graham (R) of South Carolina was the only senator to cross the aisle to support Ms. Kagan. He said elections have consequences, and that by winning election President Obama should be given latitude to appoint like-minded nominees to the high court.

“I could give you 100 reasons why I’d vote no,” Senator Graham said. “But the Constitution, in my view, puts the requirement on me as a senator not to replace my judgment for [the president’s], not to think of the 100 reasons I would pick someone different.”

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He said Kagan was well qualified, of good character, and understands the difference between being a judge and being a politician.

Kagan, the first woman to serve as US Solicitor General and the first woman to work as dean of the Harvard Law School, is widely expected to win Senate confirmation. She was named by Mr. Obama to fill the seat of retiring Justice John Paul Stevens.

She endured two days of close questioning that sought insight into what kind of justice she might become and how she might use a lifetime position on the Supreme Court to shape US law and the high court itself.

Although as a young law professor she once complained that Supreme Court confirmation hearings had taken on “an air of vacuity and farce,” her own testimony before the judiciary committee was often less than revealing.

Fifteen years ago in a law review article, Kagan wrote that senators should aggressively explore a nominee’s “vision” of the court. “This vision largely consists of a view as to the kinds of decisions the court should issue. The critical inquiry … similarly concerns the votes she would cast, the perspective she would add (or augment), and the direction in which she would move the institution,” Kagan wrote in 1995.

Several Republican committee members who voted against her said she failed to live up the standard she suggested in her 1995 essay. Some went further in their criticism.

“Throughout the testimony I believe Solicitor General Kagan chose to provide the committee with political spin,” said Sen. Jeff Sessions (R) of Alabama, the ranking Republican on the committee.

Senator Sessions criticized Kagan for claiming in her testimony that despite her decision to bar military recruiters from Harvard Law School’s office of career services, that the military retained full access to Harvard students.

“Her testimony was, at best, inaccurate and, at worst, intellectually dishonest,” he said.

In contrast, Graham was not troubled by the military recruitment issue. “Lawyers challenge the law,” he said. “She challenged the law.”

Committee Chairman Patrick Leahy (D) of Vermont said Kagan sought to accommodate military recruiting at Harvard rather than impede it. He added that she was not antimilitary in her actions and outlook.

“Elena Kagan respects and admires our military men and women,” Senator Leahy said.

In announcing his “yes” vote, Sen. Herb Kohl (D) of Wisconsin acknowledged that Kagan had sometimes been more candid than prior nominees. He said she is well qualified, has a sharp mind, a keen knowledge of the Constitution, and has pledged to uphold the rule of law, judicial modesty, and adherence to legal precedent.

But Senator Kohl also expressed disappointment. “The substance of her answers was so general at times that it was difficult to differentiate it from any other nominee,” he said.

Sen. Orrin Hatch (R) of Utah said he personally liked and respected Kagan, but that he couldn’t vote for her. “The record shows that she supports an activist judicial philosophy, and that her political views drive her legal views,” he said.

“There must be clear and convincing evidence that a judicial nominee – especially a Supreme Court nominee – understands the power and role of judges in our system of government,” Senator Hatch said. “I conclude that she does not meet this standard.”

Sen. Arlen Specter (D) of Pennsylvania voted against Kagan last year when she was nominated as solicitor general. That “no” vote came in part because of her refusal to candidly answer Senator Specter’s questions.

During the recent hearings, Specter again asked a series aggressive questions. Kagan dodged some and declined to answer others.

The senator said he had “grave concerns” about voting to approve Kagan for the Supreme Court “because of her failure to answer questions that I think aught to have been answered.”

But Specter said he had decided to vote for Kagan in part because she said identified the late Justice Thurgood Marshall as a role model. Kagan is a former law clerk for Justice Marshall.

“If she follows Justice Thurgood Marshall as a model, she’ll be in the right place ideologically,” Specter said.