Kagan Clears the Judiciary Committee on a Near Party Line Vote

Sen. Lindsey Graham of South Carolina voted in favor of the nomination of Supreme Court nominee Elena Kagan, making him the only GOP member of the Senate Judiciary Committee to back President Obama’s pick for the nation's highest court. The panel, made up of 12 Democrats and seven Republicans, approved Kagan’s nomination by a near party line vote of 13-6. Every Democrat on the panel supported her, while every Republican other than Graham opposed her. The nomination now heads to the full Senate. A vote is expected before the Senate adjourns for its traditional August recess.

The highlight of the day was Senator Graham's speech who chastised members on both sides of the aisle for their approach to judicial confirmations. In Senator Graham's view, Kagan "met a time-honored standard for judicial nominees: whether they are qualified and of good character." His own philosophical bent was of less importance because he recognized that the President had won the election in 2008. "The Constitution, in my view, puts a requirement on me not to replace my judgment for his,” noted Senator Graham.

More from the New York Times:

In a lengthy speech supporting her, Mr. Graham sparked debate about the Senate’s approach to judicial confirmations, taking colleagues — including President Obama when he was a senator — to task for basing their votes on philosophy rather than a nominee’s qualifications and character.

Mr. Graham said that Ms. Kagan was not someone he would have chosen, “but the person who did choose — President Obama — I think chose wisely.”

In a statement issued soon afterward, Mr. Obama called the vote “a bipartisan affirmation of her strong performance during her confirmation hearings” and thanked the committee for “giving her a thorough, timely and respectful hearing.”

If Ms. Kagan, 50, is confirmed by the full Senate, as expected, she would be the fourth woman to serve on the high court, and the only member of the current court not to reach it from a position on the federal appellate bench. A vote is expected before the August recess, so that Ms. Kagan can be seated before the court’s next term begins in early October.

Democrats on the committee, all of whom voted for Ms. Kagan, were largely laudatory, with one notable exception: Senator Arlen Specter of Pennsylvania. He said he was supporting Ms. Kagan, but with “grave concerns” because she had failed to “answer questions which I think ought to have been answered.”

In his three-decade career, Mr. Specter, a former Republican who once ran the Judiciary committee as its chairman, has voted on every justice now serving on the court. The committee hearing on Tuesday was something of a swan song for him — he was defeated in a Democratic primary and will be retiring at the end of the year — and he used the occasion to remind colleagues of Ms. Kagan’s critique of past confirmation hearings as a “vapid and hollow charade.” He said she had failed to live up to her own standard.

“She chastised nominees by name and castigated this committee,” Mr. Specter said, but “when she came before this committee, it was a repeat performance.”

Still, Mr. Specter said, his ultimate judgment rested on two of Ms. Kagan’s answers during her hearing: her expression of admiration for former Justice Thurgood Marshall, the civil rights giant, for whom she clerked, and her support for televising the court’s proceedings, a cause Mr. Specter has advocated for years.

The committee’s Republicans cited a number of reasons for voting against Ms. Kagan: her lack of judicial experience; her decision, while dean of Harvard Law School, to briefly bar military recruiters from the use of law school facilities; her work as an aide to former President Bill Clinton on matters relating to gun rights and abortion policy.

Senator Charles Grassley, the Iowa Republican, complained of Ms. Kagan’s “strong commitment to far left ideological beliefs,” while Senator Jeff Sessions of Alabama, the senior Republican on the panel, accused Ms. Kagan of giving testimony that was “at best inaccurate and at worst intellectually dishonest” on the recruitment issue.

But it was Mr. Graham who provided the most intriguing moment of the day, with his provocative argument in favor of Ms. Kagan.

“No one spent more time trying to beat President Obama than I did, except maybe Senator McCain,” Mr. Graham said Tuesday, referring to the 2008 presidential election and Senator John McCain of Arizona, Mr. Obama’s Republican rival. “I missed my own election — I voted absentee. But I understood: we lost, President Obama won. The Constitution, in my view, puts a requirement on me not to replace my judgment for his.”

Mr. Graham said there were “100 reasons” he could vote against Ms. Kagan if he based his vote on her philosophy, which is at odds with his. But he said she met a time-honored standard for judicial nominees: whether they are qualified and of good character.

Mr. Obama himself adopted a different standard: As a senator, he said it was permissible to vote against a nominee based on judicial philosophy, not just qualifications. Mr. Graham said that that approach was undermining the process of confirming judicial nominees, by making it more partisan.

“Something’s changing when it comes to the advice and consent clause,” he said. “Senator Obama was part of the problem, not part of the solution.”

Richard J. Durbin of Illinois, the second ranking Democrat in the Senate, said Mr. Graham’s remarks had made him rethink is own approach to judicial nominations — including the decision by Democrats several years ago to prevent Miguel Estrada, a prominent conservative lawyer, from getting a hearing before the committee when President George W. Bush nominated Mr. Estrada to a federal appeals court.

Cue the charges of high treason from Erick Erickson in three, two, . . .

Tags: Elena Kagan, SCOTUS, Obama Administration, Senator Lindsey Graham (all tags)

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