WASHINGTON (CN) – The Senate Judiciary Committee voted 13-6 on Tuesday to approve the nomination of Elena Kagan as the next associate justice of the Supreme Court. If confirmed by the full Senate, she will be the fourth woman in U.S. history to sit on the nation’s highest court.
“She demonstrated impressive knowledge of the law and fidelity to it,” committee chair Sen. Patrick Leahy, D-Vt., said of Kagan’s testimony before the committee. “She made clear that she will base her approach to deciding cases on the law and the Constitution, not politics or an ideological agenda.”
Republican Sen. Lindsey Graham of South Carolina voted with Democratic committee members to back the nomination after Republican Sen. Jeff Sessions of Alabama delayed the confirmation vote last week.
“I’m not going to stand in the way of it because I differ philosophically with this nominee,” Graham said. “I’m going to vote for her. And that doesn’t mean I’m pro-choice. I’m very pro-life. I’m going to vote for her because I believe that the last election had consequences,” he said, adding that the role of senators was to decide whether a president’s nominee was qualified to do the job.
“What’s in Elena Kagan’s heart is that of a good person who adopts a philosophy I disagree with,” Graham said. “But the Constitution, in my view, puts a requirement on me as a senator to not replace my judgment for [Obama’s]. It was not a hard decision for me to make. I thought she did a very good job.”
Along with Graham, senators voting to confirm Kagan were Democratic Sens. Leahy, Herb Kohl of Wisconsin, Dianne Feinstein of California, Russ Feingold of Michigan, Arlen Specter of Pennsylvania, Charles Schumer of New York, Dick Durbin of Illinois, Benjamin Cardin of Maryland, Sheldon Whitehouse of Massachusetts, Amy Klobuchar of Minnesota, Ted Kaufman of Delaware and Al Franken of Minnesota.
Senators voting against her nomination were Sessions, Orrin Hatch of Utah, Chuck Grassley of Iowa, Jon Kyl of Arizona, John Cornyn of Texas and Tom Coburn of Oklahoma.
Before the vote, senators discussed criticism levied against Kagan for her decision while serving as dean of Harvard Law School to ban military recruiters from recruiting on campus, because she believed the military’s “don’t ask, don’t tell” policy conflicted with the school’s antidiscrimination policy.
“Her testimony regarding this issue was, at best, inaccurate and, at worst, intellectually dishonest,” Sessions said. “When Ms. Kagan chose to block military recruiting, the law was crystal clear. She knew she was defying the law,” he said.
Cornyn said Kagan’s decision to ban military recruiters “reflects a willingness to stigmatize the U.S. military.”
Leahy disagreed. “Elena Kagan respects and admires our military men and women,” he said.
Graham, again distinguishing himself from Republican committee members, said, “She challenged the law. … I hope that’s okay. If I believed she had some animosity in her heart about those who would wear the uniform I would easily vote no. I don’t believe that.”
Ranking member Sessions voiced strong opposition against her nomination.
“When the president nominated Elena Kagan, I expressed concern about her lack of experience – not just for lack of judicial experience but for lack of robust, legal experience,” he said.
Kagan served as associate counsel to President Clinton from 1995 to 1996, as dean of Harvard Law School from 2003 to 2009, and as solicitor general since 2009. She also clerked for Justice Thurgood Marshall. She has never served as a judge.
“Based on who her judicial heroes are, the actions throughout her life and the political nature of her background, I have concluded that she cannot be the kind of justice the court needs,” Sessions said. “Therefore, I will oppose her nomination.”
Hatch said, “Ms. Kagan’s record shows that she supports an activist judicial philosophy. I like her personally. I respect her academic achievements and accomplishments. But I cannot support her nomination to the Supreme Court.”
Graham came to Kagan’s defense. “She’s a liberal. That one caught me by surprise, but yeah, she’s liberal,” he said, drawing laughter from the hearing room. “It’s particularly impressive when a conservative can say something good about a liberal,” he said, quoting a letter written by Bush D.C. Circuit nominee Miguel Estrada in support of Kagan’s nomination.
“I don’t think we can color her anything but intelligent, thoughtful, mainstream and moderate,” said Schumer.
Feingold called her “eminently qualified,” and Koh noted her “impressive resume.”
“There is no question about Elena Kagan’s qualification for this highest court,” Feinstein said. “There is no good reason to deny her appointment.”