WASHINGTON (CN) – The Senate on Tuesday debated President Obama’s nomination of Solicitor General Elena Kagan to the Supreme Court, with 47 senators announcing that they would vote in favor of her confirmation and 30 saying they would vote against it.
“Even if we disagreed on the outcome of the vote, no one could question the intelligence or achievements of this woman,” said Senate Judiciary Committee Chair Sen. Patrick Leahy, D-Vt., of the committee’s 13-6 vote in favor of Kagan’s nomination last month. “No one can question her character, either.”
Republican Senators Susan Collins and Olympia Snowe of Maine, Lindsey Graham of South Carolina, Richard Lugar of Indiana, and Judd Gregg of New Hampshire have announced support for Kagan.
Democratic Senator from Nebraska Ben Nelson said he would vote against the nomination, but promised to vote with Democrats to prevent a Republican filibuster of the confirmation vote.
Sen. Jeff Sessions, R-Ala., ranking member of the Senate Judiciary Committee, delivered the day’s harshest assessment of Kagan.
“I’m not able to support Elena Kagan for this office,” Sessions said. “I believe she does not have the gifts and qualities of mind and temperament to be a justice.”
Sessions argued that Kagan favored expansive interpretation of the Constitution and said she wanted to “advance visions of what America should be.” He called her approach to judging “unhealthy” and said her testimony before the Judiciary Committee lacked “clarity, accuracy and … intellectual honesty.”
“While she is truly intelligent, the exceptional quality of her mind may be better suited to dealing with students and unruly faculty than with the hard, daily work of deciding tough cases in the Supreme Court,” Sessions said, referencing her experience as dean of Harvard Law School.
Senate Majority Leader Sen. Harry Reid, D-Nev., interrupted Sessions to ask that the debate in the Senate chamber continue in the spirit of the “thorough and respectful” confirmation hearing, quoting Kagan herself in emphasizing the importance of separating “the truly important from the spurious.”
“I will certainly give her my vote,” Reid added.
Sessions seemed unaffected by the interruption. “There is disagreement between the facts, the White House spin, and the Kagan spin,” Sessions said after Reid yielded the floor. “We’re not lemmings here,” he said, encouraging senators to examine the record before this week’s vote.
“I just cannot support her appointment, as much as I like her as a human being,” said Sen. Orrin Hatch, R-Utah. Hatch said Kagan’s experience was merely academic and political, not judicial.
He said that of the 111 Supreme Court justices in U.S. history, the 39 who lacked judicial experience had on average 21 years of legal practice, while Kagan had only a few.
Leahy slammed Republicans for complaining that Kagan lacked judicial experience when Republicans blocked her nomination by President Clinton to serve on the 9th Circuit in 1995. He said he considered it a strength that Kagan came from outside the judicial sector.
Much of the day’s debate centered on Kagan’s decision while serving as dean of Harvard Law School to ban military recruiters from operating out of the student career office, claiming that the “don’t ask, don’t tell” policy conflicted with the school’s antidiscrimination policy.
“She reinstated a policy that she knew violated federal law,” Hatch said.
Sen. Dianne Feinstein, D-Calif., said the military recruiting incident at Harvard was “inaccurately depicted.” Recruiters were not barred from campus, Feinstein said, but were permitted to operate out of the veterans’ center. And instead of instituting a ban, Kagan reverted to a previous school policy.
Feinstein pointed out that military recruitment actually increased during Kagan’s tenure, and noted that every service member who testified before the Senate Judiciary Committee and who attended Harvard at the time Kagan was dean supported her nomination.
“It was not justified, it was wrong, it should not have been done,” Sessions said, saying Kagan punished the military for a policy set by Congress.
“To oppose the exclusionary policy of ‘don’t ask, don’t tell’ is not to oppose the military,” Feinstein said. “Nothing in her record shows hostility toward the military.”
Feinstein called her “superbly qualified,” citing recommendations from Republican Sen. Lindsey Graham, Bush appellate nominee Michael McConnell and the “deeply conservative” lawyer Miguel Estrada.
“We badly need a justice who can drive this court toward consensus, and I have high hopes that Elena Kagan will be just such a justice,” Feinstein said.
If confirmed, Kagan would replace retiring Justice John Paul Stevens and become the fourth female justice to ever sit on the Supreme Court.