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Roll Call

Republicans Who Previously Backed Kagan Vow Fresh Look

Updated: 11:47 a.m.

Republican supporters of President Barack Obama’s nomination of Elena Kagan to become solicitor general last year are already warning they may not back her bid to replace Justice John Paul Stevens on the Supreme Court.

At least two Republicans who voted for Kagan’s confirmation last year — Senate Minority Whip Jon Kyl (Ariz.) and Sen. Orrin Hatch (Utah) — said Monday that they will not be bound by their previous support and called for a lengthy, deliberate confirmation process.

“As I made clear when I supported her confirmation as solicitor general, a temporary political appointment is far different than a lifetime appointment to the Supreme Court,” Kyl said. “Every Senator has a constitutional duty to scrutinize judicial nominees, and I will take great care in examining her record to ensure that she possess the qualities the American people expect in our Supreme Court justices. I expect Senate Democrats will allow ample time for the Senate to conduct this vetting process.”

Likewise, Hatch warned that his chief concern will be a review of Kagan’s judicial philosophy and warned that his conclusions “will be based on evidence, not blind faith. Her previous confirmation, and my support for her in that position, do not by themselves establish either her qualifications for the Supreme Court or my obligation to support her.”

In a statement released by her office, Sen. Susan Collins (R-Maine) did not indicate which way she was leaning, but she praised Kagan’s record.

“Ms. Kagan has an impressive resume of dedicated public service and strong legal credentials, but she does not have extensive writings by which one can assess her judicial philosophy. In the coming weeks, I will closely examine her record as U.S. Solicitor General. I will also follow the Judiciary Committee hearings so that I can better assess how she might approach issues as a judge,” Collins said.

In addition to Kyl, Hatch and Collins, GOP Sens. Olympia Snowe (Maine), Dick Lugar (Ind.), Judd Gregg (N.H.) and Judiciary Committee member Tom Coburn (Okla.) all voted for Kagan’s nomination as solicitor general.

Whether Kagan will see support from those Republicans remains unclear, but at least one Republican — National Republican Senatorial Committee Chairman John Cornyn (Texas), a Judiciary Committee member — quickly attacked the nomination.

“She is a surprising choice from a president who has emphasized the importance of understanding ‘how the world works and how ordinary people live.’ Ms. Kagan has spent her entire professional career in Harvard Square, Hyde Park, and the DC Beltway,” Cornyn said in a statement. “These are not places where one learns ‘how ordinary people live.’ Ms. Kagan is likewise a surprising choice because she lacks judicial experience. Most Americans believe that prior judicial experience is a necessary credential for a Supreme Court Justice.”

However, Sen. Lindsey Graham (S.C.), the only Republican on the Judiciary Committee who voted for Supreme Court Justice Sonia Sotomayor, offered early praise for the new nominee. “I have been generally pleased with her job performance as solicitor general, particularly regarding legal issues related to the war on terror,” Graham said.

“As a member of the Senate Judiciary Committee, I intend to be fair and firm in my questioning of the nominee. ... I hope we will have a meaningful opportunity to explore the qualifications, judicial temperament and judicial philosophy of Ms. Kagan,” he added.

Graham was one of a handful of lawmakers who did not cast a vote on Kagan’s confirmation as solicitor general and has been targeted as a potential key GOP supporter in her upcoming nomination vote.

Senate Minority Leader Mitch McConnell (R-Ky.) called for a long confirmation process to review Kagan’s record and stressed that judges should base their rulings on the law, not on empathy. “Senate Republicans will have a vigorous debate on the importance of this principle. And we will diligently review the record of Ms. Kagan to ensure that she shares this principle and that she possesses the requisite experience to serve on the Supreme Court,” McConnell said in a statement.

Democrats hailed Kagan’s nomination and highlighted the facts that she comes from outside of the “judicial monastery” and that her confirmation will mark the first time three women have served on the court.

“President Obama has chosen a worthy nominee to replace Justice Stevens, a jurist who Americans have respected and admired for so many years. I am particularly pleased President Obama has chosen a nominee from outside the judicial monastery,” Senate Majority Leader Harry Reid (D-Nev.) said in a statement. “I believe that through her confirmation process, Elena Kagan will demonstrate that her primary allegiance is to fairness, justice and the rule of law, not ideology. When Solicitor General Kagan is confirmed, the Supreme Court will have three sitting female Justices for the first time — a historic occurrence that is long overdue.”

Reid’s comments track closely to talking points circulated to Democratic lawmakers Monday morning by the White House. According to a copy of the talking points obtained by Roll Call, Democrats over the next several days will make the case that as the first female solicitor general and dean of the Harvard Law School, Kagan is a “trailblazer” who “understands the impact of law on ordinary people’s lives.” Democrats will also point to the support she garnered from Republicans during her solicitor general confirmation as proof that Kagan is a “leader who inspires the confidence and support of Democrats and Republicans,” according to the talking points.

Additionally, the White House appears to be taking a page from their confirmation playbook for Justice Sonia Sotomayor and will use Kagan’s personal history to portray her as “a product of a family that prized education and service to others,” the talking points said.

Senate Judiciary Chairman Patrick Leahy (D-Vt.) said some Republicans would oppose any nomination Obama offered. “The president could nominate Moses the lawgiver,” Leahy said. “I told the president if he nominated Moses the lawgiver, someone would raise: ‘But he doesn’t have a birth certificate. Where’s his birth certificate?’”

Jessica Brady contributed to this report.

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