Kagan to join high court as 112th justice

Kagan

WASHINGTON -- Elena Kagan survived her own confirmation mess.

The lawyer and academic who once famously blasted the Supreme Court confirmation process as a charade emerged from it intact on Thursday, confirmed by the Senate as the 112th justice and the fourth woman in the court's history.

President Barack Obama's nominee didn't tell senators much more than the justices she criticized in her 1995 law review article entitled "Confirmation Messes, Old and New" -- but it was enough for majority Democrats and a handful of moderate Republicans to back her.

The vote was 63-37 for Kagan, who will be sworn in Saturday afternoon at the Supreme Court as the successor to retired Justice John Paul Stevens.

Five Republicans -- including South Carolina's Lindsey Graham -- joined all but one Democrat and the Senate's two independents to support Kagan. In a rarely practiced ritual reserved for the most historic votes, senators sat at their desks and stood to cast their votes with "ayes" and "nays."

Kagan watched on TV in the conference room at the solicitor general's office, with her Justice Department colleagues looking on.

Obama, traveling in Chicago, said her confirmation was an affirmation of her character and judicial temperament, and called the addition of another woman to the court a sign of progress for the country.

The Senate, he said, "got a pretty good look at Elena Kagan ... her formidable intelligence, her rich understanding of our Constitution, her commitment to the rule of law, and her excellent -- and occasionally irreverent -- sense of humor."

The president invited Kagan to the White House today for a ceremony to celebrate her confirmation.

Kagan isn't expected to alter the ideological balance of the court, where Stevens was considered a leader of the liberal wing. But the two parties clashed over her nomination and the court itself. Republicans argued that Kagan was a politically motivated activist who would be unable to put aside her opinions and rule impartially. Democrats defended her as a highly qualified trailblazer for women who could bring a note of moderation and real-world experience to a polarized court they said was dominated by just the kind of activists the GOP denounced.

Kagan is the first Supreme Court nominee in nearly 40 years with no experience as a judge, and her swearing-in will mark the first time that three women will serve on the nine-member court together.

Her lack of judicial experience was the stated reason for one fence-sitting Republican, Sen. Scott Brown of Massachusetts, to announce his opposition to Kagan's confirmation Thursday, just hours before the vote.

Though calling her "brilliant," Brown -- who had been seen as a potential GOP supporter -- said she was missing the necessary background to serve as a justice.

"The best umpires, to use the popular analogy, must not only call balls and strikes, but also have spent enough time on the playing field to know the strike zone," Brown said.

Democrats said they hoped Kagan would act as a counterweight to the conservative majority that's dominated the Supreme Court in recent years.

"I believe she understands that judges and justices must realize how the law affects Americans each and every day. That understanding is fundamental," said Sen. Patrick Leahy, D-Vt., the Judiciary Committee chairman. With her confirmation, he said, "the Supreme Court will better reflect the diversity that made our country great."

Most Republicans portrayed Kagan as a partisan who will use her post to push the Democratic agenda from the bench.

Kagan "is truly a person of the political left -- now they call themselves progressives -- one who has a history of working to advance the values of the left wing of the Democratic Party, and whose philosophy of judging allows a judge to utilize the power of their office to advance their vision for what America should be," said Sen. Jeff Sessions of Alabama, the top Republican on the Judiciary Committee.

Just one Democrat -- centrist Sen. Ben Nelson of Nebraska -- crossed party lines to oppose Kagan.

In addition to Graham, the moderate Republicans who broke with their party to back her were Maine Sens. Susan Collins and Olympia Snowe, retiring Sen. Judd Gregg of New Hampshire, and Indiana Sen. Richard Lugar.

They argued that partisanship should play no role in debates over the Supreme Court and have called Obama's nominee qualified.

Still, it was clear that unlike in past decades -- when high court nominees enjoyed the support of large majorities on both sides -- party politics was driving the debate and vote on Kagan, much as it did last year when the Senate considered Obama's first pick, Justice Sonia Sotomayor, and former President George W. Bush's two nominees, Chief Justice John Roberts and Justice Samuel Alito.

GOP senators have criticized Kagan for her decision as dean to bar military recruiters from the Harvard Law School career services office because of the prohibition against openly gay service members. Republicans spent the last hours of debate accusing her of being hostile to gun rights, and they also have spent considerable time criticizing her stance in favor of abortion rights.

Kagan revealed little about what kind of justice she would be in weeks of private one-on-one meetings with senators and several days of testimony before the Judiciary panel, despite having famously penned a law review article blasting Supreme Court nominees for obfuscating before the Senate. She dodged questions about her personal beliefs on a host of hot-button issues and declined repeatedly to "grade" Supreme Court rulings.

Kagan will be no stranger to the eight justices she is to join on the Supreme Court, having served as the government's top lawyer arguing cases before them in a post often referred to as the "10th justice." She's already friendly with a number of them, not least Antonin Scalia, the conservative justice who is her ideological opposite.

Not since 1972 has the Senate confirmed a Supreme Court nominee without experience as a judge. That year, both William Rehnquist and Lewis Powell Jr. joined the court.