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Supreme Court Nominee Kagan Is Cleared by Senate Committee

By Laura Litvan - Jul 20, 2010 Email Share


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Elena Kagan, nominee for the U.S. Supreme Court, smiles during a Senate Judiciary Committee confirmation hearing in June. Photographer: Joshua Roberts/Bloomberg
The Senate Judiciary Committee approved the nomination of Elena Kagan to the U.S. Supreme Court, clearing the way for President Barack Obama’s second pick for the high court to be confirmed by early August.

The panel voted 13-6 today, with Senator Lindsey Graham of South Carolina the only Republican on the panel to support her. Senate Majority Leader Harry Reid, a Nevada Democrat, plans a vote by the full Senate during the week of Aug. 2.

“What’s in Elena Kagan’s heart is that of a good person who adopts a philosophy that I disagree with,” Graham said. She “understands the difference between being a liberal judge and being a politician.”

Democrats will control the Senate 59-41 with the swearing in later today of Carte Goodwin to replace the late Robert Byrd of West Virginia. The margin all but ensures Kagan will become the 112th justice in U.S. history and the third woman on the current court.

She would replace Justice John Paul Stevens and likely align as he did with the court’s more liberal members, leaving intact the court’s 5-4 conservative majority on such issues as abortion, gun rights and campaign finance.

Democrats say Kagan has impressive professional credentials, including being dean of Harvard Law School, and would bring balance to a court they say favors corporations over legal precedent. Republicans have called her a political activist who lacks any experience as a judge.

“She has worked to bend the law to fit her personal political wishes,” said Senator Charles Grassley, an Iowa Republican.

Working for Clinton

Kagan, 50, was nominated by Obama on May 10 to replace Stevens, who retired after 35 years on the nine-member court. She is the U.S. solicitor general, the government’s top lawyer before the Supreme Court, and worked for four years in President Bill Clinton’s White House as a lawyer and policy adviser.

A New York native, Kagan was approved by the Senate 61-31 in 2009 to be solicitor general. Obama’s first Supreme Court nominee, Sonia Sotomayor, was confirmed last year 68-31, with nine Republicans supporting her.

At her confirmation hearings, Kagan testified that she believes justices should seek more consensus when possible, while refusing to criticize narrowly decided decisions reached by the court under Chief Justice John Roberts.

She also made clear she doesn’t share the “originalist” approach of Justices Antonin Scalia and Clarence Thomas, who say the Constitution should be interpreted in line with the meaning of its provisions when they were adopted.

Baseball Umpires

She took issue with an analogy made by Roberts during his 2005 confirmation hearing, when he likened judges to baseball umpires who call balls and strikes. That analogy is “correct in several important respects but like all metaphors it does have its limits,” Kagan said, adding that it suggests judging is a “robotic enterprise.”

Republicans have raised questions about recently released documents from her White House years. She served as an associate counsel to Clinton in 1995 and 1996 and a deputy assistant for domestic policy from 1997 to 1999.

Many of the records reflect an aide searching for pragmatic solutions for a Democratic president wrestling with a Republican-led Congress on issues such as a ban on a procedure opponents call partial-birth abortion. In one memo she said a federal law banning assisted suicide by doctors would be a “fairly terrible idea.”

Gun Control Case

Republicans also have raised concerns about memos she wrote as a law clerk to former Justice Thurgood Marshall. In one 1987 memo, she urged Marshall to vote against hearing a Washington man’s appeal in a gun control case. She said she was “not sympathetic” to his claim his rights were violated when he was convicted for carrying an unlicensed pistol.

Another issue in her confirmation is her decision as Harvard law school dean, a job she held from 2003 to 2009, to bar military recruiters from the campus in protest of the Pentagon’s ban on openly gay troops. Kagan backed a lawsuit seeking to overturn the withholding of federal funds from schools that blocked the recruiters.

She said at her hearings that she took steps to ensure recruiters could meet with students “every single day” at an off-campus site and stressed her respect for students who served in the armed forces.

To contact the reporter on this story: Laura Litvan in Washington at llitvan@bloomberg.net
U.S. · Executive · Law

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