WASHINGTON (CN) – The Senate voted 63-37 Thursday to confirm the nomination of Elena Kagan to serve as an associate justice on the U.S. Supreme Court. Five Republicans voted with majority Democrats in support of the nomination. One Democrat, Sen. Ben Nelson of Nebraska, voted against it. After Kagan is sworn in, she will become the fourth woman to sit on the court in U.S. history.
“She comes to the court immensely talented, supremely qualified and … with a gift of bringing consensus,” said Sen. Sheldon Whitehouse, D-R.I., in a news conference following the vote.
“She has every single reason to be one of our extraordinarily good justices,” said Senate Judiciary Committee Chair Sen. Patrick Leahy, D-Vt., at the conference.
Republican Sens. Susan Collins and Olympia Snowe of Maine, Lindsey Graham of South Carolina, Richard Lugar of Indiana, and Judd Gregg of New Hampshire joined 56 Democrats and two Independents voting in support of Kagan’s confirmation.
Lone Democratic senator from Nebraska Ben Nelson voted against Kagan’s confirmation.
“I have heard concerns from Nebraskans regarding Ms. Kagan,” Nelson said in a statement issued last week, “and her lack of a judicial record makes it difficult for me to discount the concerns raised by Nebraskans, or to reach a level of comfort that these concerns are unfounded.”
“Elena Kagan’s legal qualifications are unassailable,” Leahy said on the Senate floor Thursday before the vote. “She earned her place at the top of the legal profession.”
The debate in the Senate, which stretched from Monday until the confirmation vote Thursday afternoon, volleyed largely between two partisan narratives, with Democrats lauding her intellect and calling her academic and political experience outside the judicial monastery an asset, and Republicans attacking her lack of judicial experience and political ideals. Kagan has never been a judge.
Leahy said that, in criticizing her lack of experience, Republicans were “ignoring the fact” that they pocket filibustered Kagan’s nomination to the D.C. Circuit by President Clinton in 1999.
“The American people will not easily forgive this senate if we confirm Miss Kagan to the Supreme Court,” said Senate Judiciary Committee ranking member Sen. Jeff Sessions, R-Ala., on the Senate floor Thursday. Sessions has been the strongest voice of opposition to Kagan’s nomination during the 12 weeks of Senate consideration since Kagan was nominated on May 10.
Sessions said Kagan was “unable to serve under the Constitution” and would “advance a broader vision of what America should be…putting her politics above the law.”
Republicans have said they do not oppose her because of her politics, but because they believe she would bring her politics into the courtroom.
“If confirmed, she will be tied more to her own political agenda than to the Constitution of this great country,” said Sen. Richard Burr, R-N.C., in a floor speech Thursday. Burr said because Kagan had not shown that she could leave her politics outside of her judging, she “fails to meet the minimum qualification” of a Supreme Court justice.
During the debate, Democrats repeatedly noted that Kagan had supporters from across the political spectrum. Several cited a letter of recommendation written by the last 10 solicitor generals stretching back to 1985. Kagan has served as solicitor general since 2009.
“Elena Kagan would bring to the Supreme Court a breadth of experience and a history of great accomplishment in the law,” the solicitors general wrote. They said her “constant interaction” with the court as solicitor general prepared her for a spot on the high court’s bench.
Previous to serving as solicitor general, Kagan served as a law clerk to Supreme Court Justice Thurgood Marshall in 1988, associate counsel and policy advisor to President Clinton from 1995 to 1999, a law professor at Harvard and University of Chicago Law Schools, and dean of Harvard Law School from 2003 to 2009.
Once Kagan takes the oath of office, she will join Justices Ruth Bader Ginsberg and Sonia Sotomayor as the third female justice on the current court.
After the vote, a group of Democratic senators held a news conference to congratulate Kagan on her confirmation and express their hope that her presence on the court would move it away from a “sharp rightward shift” and a period of “judicial activism.”
“Today is a day of hope,” said Sen. Charles Schumer, D-N.Y., adding that Kagan would add balance with a high court containing the “five most conservative justices in history.”
Democratic senators have complained about a recent string of 5-4 decisions that favor corporate interests, including the January decision in Citizens United v. Federal Election Commission that removed limits on corporate spending in U.S. elections.
Whitehouse said that the only “regrettable” part of Kagan’s Senate confirmation Thursday was that the Republicans who voted against her did so because of an “affirmative desire that any candidate for the U.S. Supreme Court presubscribe to a certain right-wing ideology.”
“Hopefully we’ll start to see a court that is … judicially modest,” said Sen. Al Franken, D-Minn.
Added Sen. Ted Kaufman, D-Del, “Clearly it’s a great day for the country,” said Sen. Ted Kaufman, D-Del.