- The Washington Times - Thursday, August 5, 2010

The Senate on Thursday confirmed Elena Kagan to serve on the Supreme Court, making the former Harvard Law School dean the court’s youngest member and just the fourth woman in history to receive the lifetime appointment.

After the 63-37 vote, top Democrats trumpeted Ms. Kagan as a “great antidote” to a Supreme Court that, because of Republican appointments, they say has swung too far right.

“The hard right in America, having been unable to change the country … decided the best way to do it was the Supreme Court,” said Sen. Charles E. Schumer, New York Democrat. “I am hopeful that she can prevent this judicial activism of the right from overwhelming the court.”

Five Republicans followed through on their vows to support Ms. Kagan, 50, who has been serving as the nation’s first female U.S. Solicitor General. She received five fewer votes than President Obama’s only other Supreme Court nominee, Justice Sonia M. Sotomayor.

While Republicans for weeks hammered away at Ms. Kagan’s lack of judicial experience and portrayed her as a liberal ideologue, none tried to block her confirmation vote by way of a filibuster. Ms. Kagan isn’t expected to alter the ideological balance of the court, and her confirmation was never much in doubt.

Sen. Scott Brown, a moderate Massachusetts Republican who many thought was a Kagan supporter, said he opposed her nomination because she lacked judicial experience. Ms. Kagan will be the first justice in nearly 40 years to be confirmed with no experience as a judge.

“Lacking that, I look for many years of practical courtroom experience to compensate for the absence of prior judicial experience,” he said. “In Elena Kagan’s case, she is missing both.”

Sen. Al Franken, Minnesota Democrat, said it was unfair to dismiss Ms. Kagan because she hasn’t served as a judge.

“You only have one life, and think about what she has done during her life,” Mr. Franken said while ticking off a list of her career accomplishments.

Ms. Kagan is the first woman to serve as the federal government’s top litigator before the Supreme Court, and the first woman to head the Harvard Law School.

She also served as a legal adviser in the Clinton administration. She will succeed retired Justice John Paul Stevens, who became a leader of the court’s liberal wing during his 35-year tenure. He left the court this year.

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

She is scheduled to be sworn in Saturday afternoon at the court by Chief Justice John G. Roberts Jr.

The Republicans who supported Ms. Kagan were: Sens. Lindsey Graham of South Carolina, Richard G. Lugar of Indiana, Judd Gregg of New Hampshire and Susan Collins and Olympia J. Snowe of Maine.

One Democrat, Ben Nelson of Nebraska, voted no.

Ms. Kagan’s wit, modesty and legal expertise during her three days of testimony last month before the Senate Judiciary Committee drew praise from even opponents.

Backers of Ms. Kagan portrayed the former Harvard Law School dean as an exceptional legal expert with mainstream views who would serve as an impartial judge.

Mr. Obama praised the Senate’s action, saying that their vote “wasn’t just an affirmation of Elena’s intellect and accomplishments - it was also an affirmation of her character and her temperament.”

“Because of her intellect, integrity, her reason, restraint and respect for the rule of law, her unimpeachable character and unwavering fidelity to our Constitution, I’m proud to cast my vote for Elena Kagan,” said Senate Majority Leader Harry Reid, Nevada Democrat.

Many Republicans accused Ms. Kagan of holding weak views of the Second Amendment’s right to bear arms.

“As a top aide to President Clinton, she was closely involved in efforts to restrict private gun ownership,” said Sen. Jeff Sessions of Alabama, the top Republican on the Senate Judiciary Committee.

Republicans also criticized Ms. Kagan for limiting campus access to military recruiters while at Harvard because of the Pentagon’s policy against allowing gays to serve openly in the military.

“The use of her authority as dean in that way leads me to believe that she would use her authority as a Supreme Court justice to advance her own policy preferences,” said Sen. Lamar Alexander, Tennessee Republican.

Ms. Kagan has said that her handling of military recruiters at Harvard was based on the school’s anti-discrimination policy, not her personal beliefs.

Sen. Jim DeMint, a South Carolina Republican, said he opposed Ms. Kagan’s nomination because she “does not believe in constitutional limited government.”

“She does not believe in the original intent of the Constitution but more of President Obama’s belief of a more living Constitution,” he said.

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

c This article is based in part on wire service reports.

• Sean Lengell can be reached at slengell@washingtontimes.com.

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