Elena Kagan Confirmed

The Senate has confirmed Elena Kagan, the current Solicitor General, to the United States Supreme Court. The vote of 63-37 today was largely along party lines, with five Republicans supporting the nominee and one Democrat, Senator Ben Nelson of Nebraska, opposing her. Also voting against Kagan was Senator Scott Brown of Massachusetts. In the end, Kagan received fewer Republican votes than Justice Sotomayor, who was supported by nine in her 68-31 confirmation on Aug. 6, 2009.

Kagan becomes the nation’s 112th justice, fourth woman and just the sixth member of the court who isn’t a white male. For the first time, the nine-member court will have three women, Ruth Ginsberg appointed by President Clinton and Sonia Sotomayor appointed last year by President Obama.

More from the New York Times. And for history buffs, this report from the Congressional Research Service (pdf) provides a detailed history of Supreme Court Nominations from 1789 through 2009.

Quick Hits

Here are some other items making the rounds today.

It's primary day in Kansas, Michigan, and Missouri. CNN has an overview.

Senate Majority Leader Harry Reid continues to hold a narrow edge over the Tea Party extremist Sharron Angle in Nevada in the latest Reuters-Ipsos poll Among voters who said they are likely to vote, Reid held a 48-44 percent lead.

The Senate on Tuesday opened floor debate of on the nomination of Elena Kagan to the Supreme Court. Five Republicans have already stated their intention to confirm while one Democrat, Ben Nelson of Nebraska, will not vote to confirm. The vote will likely be held Thursday or perhaps Friday before the Senate adjourns for its August recess. More from the New York Times.

White House press secretary Robert Gibbs acknowledged Tuesday that President Obama's presence in some districts would hurt Democratic candidates in the midterm elections. The Hill has more on Gibbs' remarks.

David Corn of Mother Jones profiles the outgoing GOP Rep. Bob Inglis of South Carolina who was ousted by the Tea Party backed candidate Trey Gowdy. In the article, Congressman Inglis Bob Inglis slams Republican demagoguery, bemoans anti-Semitic tea party conspiracy nonsense, decries Sarah Palin's ignorance, while he looks for a job.

Speaking of conservative extremism and purity tests in South Carolina, the Greenville County Republican Party voted 61 to 2 to rebuke Senator Lindsey Graham for not being conservative enough. The story from CNN.


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, . . .

Erick Erickson's Confirmation Treason

Erick Erickson, the editor of Red State and a paid political analyst for CNN, concludes in Human Events, the weekly magazine that has showcased radical right wing inanities since 1944, that the Obama nominated "Elena Kagan is too radical for a lifetime appointment to the Supreme Court" and that "Senators would be committing a high act of confirmation treason if they allow this nominee to go on the court without attempting to filibuster her nomination."

What does "a high act of confirmation treason" even mean? And how is it that someone who upon the retirement of Justice David Souter back in May 2009 tweeted that the "nation loses the only goat fucking child molester to ever serve on the Supreme Court" is a paid political contributor to CNN?

Have we reached the point where every Supreme Court nomination is a pitched battle so much so that accusations of treason are leveled without so much as a thought? What is Erickson going to do when say Senator Olympia Snowe votes to confirm Elena Kagan? Is he going to take to the airwaves and call for her execution by a firing squad? Temperance has been a civic virtue since the glory that was Athens, but the lack of temperance of the rabid right will tear this country apart if it is not reprimanded for its verbal excesses. CNN needs to hold Erick Erickson accountable for his poisoning of the national discourse.


Weekly Pulse: Kagan Hearings: Gags, God, Guns, and Gays

by Lindsay Beyerstein, Media Consortium blogger

Elena Kagan’s Supreme Court confirmation hearings kicked off on Monday. Her nomination has been met by glum resignation on the left and indifference on the right, as Adam Serwer notes in the American Prospect.  Kagan is hoping to replace the Supreme Court’s most prominent liberal, Justice John Paul Stevens, who stepped down earlier this week. Progressives are counting on Kagan to shore up the pro-choice faction on the court.

Kagan has never been a judge and she hasn’t published very many academic law opinions. As a result, the confirmation process is leaning heavily on her counsels to President Bill Clinton as a White House adviser, her clerkship with legendary liberal Supreme Court Justice Thurgood Marshall, and her stint as Dean of Harvard Law School.

Kagan on choice

RH Reality Check has video of a key exchange in Kagan’s confirmation hearing yesterday, in which Sen. Diane Feinstein (D-CA) pressed Kagan on her views about life and health exemptions for the mother within abortion bans.

“Do you believe the constitution requires that the health of the mother be protected in any statute restricting access to abortion?” Feinstein asked Kagan.

“Senator Feinstein, I do think that the continuing holding of Roe and Doe v. Bolton is that women’s life and women’s health have to be protected in abortion regulation,” Kagan replied.

That’s a good start, but it’s hardly the ringing endorsement of choice that progressives would have hoped. Kagan went on to talk the special case of “partial birth abortion bans,” which she encouraged Bill Clinton to support while he was president. “Partial birth abortion” isn’t even a medical term. It’s a marketing term coined by anti-choicers in their bid to chip away at Roe v. Wade. For pro-choicers, it’s disappointing to see Kagan uncritically buying into that frame.

Title X and the Gag Order

Jodi Jacobson discusses Kagan’s record on choice issues in greater detail at RH Reality Check. She notes that the Center for Reproductive Rights reviewed Kagan’s record and raised many questions about her views on abortion. On the bright side, CRR believes that Kagan would have struck down the Title X gag rule. Title X was established in 1970 to provide public funding for reproductive health care, including birth control.

In 1988, the Secretary of Health and Human Services imposed a so-called “gag rule” that prevented doctors from talking about abortion and required them to refer patients to services for the welfare of “the unborn.” Kagan argued in a 1992 law review article that the gag order violated the First Amendment because the government was trying to silence one point of view while promoting another.

However, in a memo for Justice Thurgood Marshall, Kagan said it was “ludicrous” that a lower court found that the Eighth Amendment guarantees elective abortions for women in prison. Kagan disagreed with the lower court’s finding that elective abortions are “serious medical needs.”

Obamacare all over again

A Supreme Court confirmation hearing is like Shark Week on the Learning Channel. Chum’s up!

Sen. Jeff Sessions (R-AL) criticized Kagan for rejecting the fringe legal theory of  “tentherism,” a position that opponents of health care reform have used to argue that Obamacare is unconstitutional. As Ian Millhiser observes in AlterNet, it’s ironic that Sessions also criticized Kagan as an incipient “activist judge.” Embracing “tentherism” would be nothing if not judicial activism. It’s extremely unlikely that any tenther-based challenge would make it to the Supreme Court.

Outside the Senate chamber, anti-gay activist Peter LaBarbera is demanding to know whether Dean Kagan schemed to allow transgender people to use the bathroom of their choice, reports Stephanie Mencimer of Mother Jones.

Some Republican senators questioned Kagan about her decision to bar military recruiters from school-sponsored recruiting events at Yale Law School over Don’t Ask Don’t Tell. On the outside, a  Yale grad and Republican activist named Flagg Youngblood has taken to the talkshow circuit to complain about how he had to attend ROTC drills at another school. It’s not clear why any of this is Kagan’s problem, seeing as she was Dean of Harvard and took a much weaker stance on military recruiting.

That’s not cooling Youngblood’s apocalyptic anti-Kagan rhetoric, though, Adam Weinstein reports in Mother Jones. “In the last 18 months, the president and his plotting comrades have dragged the United States to the edge of Constitutional oblivion.  America’s in the eleventh hour, and Elena Obama must be stopped from pushing us over the cliff,” Youngblood recently proclaimed.

Part of the plan

Meanwhile in Nevada, Republican Senate hopeful Sharron Angle is in hot water for asserting that women who get pregnant through rape must be forced to give birth because these pregnancies are all part of God’s plan. Good catch by Vanessa Valenti of Feministing.

“You know, I’m a Christian, and I believe that God has a plan and a purpose for each one of our lives and that he can intercede in all kinds of situations and we need to have a little faith in many things,” Angle said in an interview with a conservative broadcaster in January.

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