Black Robe Appears Fit for Kagan

Posted July 20, 2010 at 6:34pm

Elena Kagan inched closer Tuesday to becoming the fourth woman to serve on the Supreme Court after the Judiciary Committee sent her nomination to the full Senate for approval.

The panel voted 13-6 in favor of Kagan’s installment on the bench — with only Sen. Lindsey Graham (S.C.) breaking GOP ranks to vote in favor. The outcome was largely expected: Graham was the only Republican who Democrats believed might vote “yes” heading into Tuesday’s session. Graham also supported President Barack Obama’s first pick for the high court, Sonya Sotomayor, who was confirmed to the court almost a year ago.

The Senate is expected to act on Kagan’s nomination later this month or during the first week in August. Kagan would replace retiring Justice John Paul Stevens; she would become the third woman on the current court.

Majority Leader Harry Reid on Tuesday would say only that the confirmation vote will happen “before we leave for the August recess.” Democratic leadership aides expect the Nevada Democrat to carve out three days for floor debate. With Graham’s support, Kagan is expected to pick up a handful of other moderate Republican votes — most likely Maine Sens. Olympia Snowe and Susan Collins. Kagan is not, however, expected to garner as much support from the GOP as Sotomayor did. Seven Republicans voted to confirm Sotomayor.

As has been the case with her entire confirmation process, Kagan’s vote in Judiciary received little attention: It was not broadcast live on cable news networks, and it was largely upstaged by Tuesday’s swearing-in of Sen. Carte Goodwin (D-W.Va.), who was tapped to temporarily replace the late Sen. Robert Byrd (D).

But while Kagan’s Judiciary vote lacked drama, it did feature its share of predictable rhetoric.

Chairman Patrick Leahy kicked off the hearing by praising Kagan, arguing that during her hearings the solicitor general “demonstrated an impressive knowledge of the law and fidelity to it. She spoke of judicial restraint, her respect for our democratic institutions, and her commitment to the Constitution and the rule of law.” But then the Vermont Democrat shifted gears, accusing Republicans of taking cues from the Wall Street Journal’s conservative editorial board, which has demanded Kagan recuse herself from many of the legal matters the Obama administration has addressed.

Recusals “suddenly became a major issue” for Republicans after the newspaper editorialized on it, Leahy charged. Until then, “the issue of recusal did not appear to rank highly as a matter on which the Republican members of this committee seemed concerned. It was only after publication of the editorial that Republican Members decided they had not yet asked ‘essential’ questions.”

Leahy also tried to deflect GOP charges that Kagan doesn’t support the military based on her decision as the dean of Harvard Law School to limit military recruiters’ access to the campus. “Those who have recently filibustered veterans benefits and have threatened to filibuster legislation authorizing our Department of Defense programs and activities … I’m not going to say they are anti-military. But they should not at the same time they are filibustering those benefits say she is anti-military,” Leahy said.

Leahy told Republicans to keep their remarks on Kagan’s nomination brief. “No minds on the committee are going to be changed by what we say today,” he said.

Ranking member Jeff Sessions used the hearing to accuse Kagan of lying to the committee and engaging in “political spin” during her testimony. The Alabama Republican said Kagan “repeatedly chose to provide the committee with political spin rather than clearly and honestly admitting or describing events.”

Sessions also raised the issue of military recruiters’ access at Harvard. Kagan made the decision based on her objection to the military’s “don’t ask, don’t tell” policy banning openly gay individuals from serving.

“Her claim to this committee that she thought she was complying with the law is not accurate. Rather than admit what she did and explain it, she chose to spin the facts in a way that was, at best, misleading and, at the worst, dishonest,” Sessions said.

Likewise, Sen. Orrin Hatch (R-Utah) accused Kagan of being a partisan who would use the bench to further her political views. Kagan served in the Clinton administration and worked on Michael Dukakis’ 1988 presidential bid.

“Ms. Kagan’s record shows that she supports an activist judicial philosophy, and that her personal and political views drive her legal views. Unfortunately, her hearing before this committee did nothing to counter the picture that emerges from her record,” he said.

Graham appeared to be the only Judiciary member who tried to stay above the partisan bickering, noting her qualifications to serve on the court.

“It was not a hard decision for me to make. I thought she did a good job [in her hearings]. She will serve this nation honorably,” he said.

Graham said one of the reasons he decided to support Kagan was the endorsement she received from conservatives, including Miguel Estrada, whom President George W. Bush nominated to serve as an appeals court judge. Democrats blocked Estrada’s installment.

“I tend to listen to what people who have known the nominee longer than I have say. … Miguel Estrada’s letter just really hit me hard,” Graham said.

David M. Drucker contributed to this report.