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Kagan nomination approved by Senate judiciary panel

By Paul Kane
Washington Post staff writer
Tuesday, July 20, 2010; 1:12 PM

The Senate Judiciary Committee voted Tuesday to approve Elena Kagan's nomination to the Supreme Court, clearing a key hurdle on her path to winning confirmation as just the fourth woman to ever serve on the high court.

Voting largely along party lines, 13-6, the committee sent her nomination to the full Senate for consideration this month or in early August. Sen. Lindsey Graham (R-S.C.), who previously voted for President Obama's nomination of Justice Sonia Sotomayor, was again the only Republican on the panel to support Kagan.

"I think there's a good reason for a conservative to vote yes," Graham told his colleagues. He added that she was "smart . . . and she's funny, that goes a long way in my book."

In a more than two-hour meeting, committee Democrats and Republicans revisited many of the same themes from the marathon hearings held in late June with Kagan, the current solicitor general. Republicans questioned her credentials and her lack of experience as a federal judge, and cited her decision, while dean of Harvard Law, to forbid military recruiters on the campus of one of the nation's top law schools.

Democrats countered that Kagan's legal background matched many past and current justices and defended her Harvard position by saying she was trying to walk the line of supporting the military and the university's prohibition on discrimination in light of the "don't ask, don't tell" policy toward homosexuals serving in the military.

Much of the debate, however, focused not on her background but on the entire confirmation process that the committee employs for Supreme Court nominees. Kagan came under bipartisan condemnation for what the senators described as her "opaque and limited answers" and her game of "hide the ball," the latest venting by a Judiciary Committee that is increasingly frustrated by its own system for vetting the nation's most important judges.

"Too often we heard detailed explanations about the state of the law, but learned little more about what weight she would give to relevant precedent. The substance of her answers was so general at times that it would be difficult to distinguish her answers from those of any other nominee," said Sen. Herb Kohl (Wisc.), the second most senior Democrat on the panel.

"It is possible to learn much about a nominee's approach to judging without committing one to a specific position in future cases," Sen. Jon Kyl (R-Ariz.) said. "What we should expect, however, is candor and a willingness to honestly discuss background, general constitutional principles, approaches to judging, and writings and matters within the nominee's background that bear on the nominee's suitability for the bench."

Kagan's approach to Supreme Court hearings has been the norm since the 1987 nomination of conservative jurist Robert Bork turned into a high-profile battle over the nominee's writings and rulings. Bork engaged the committee and jousted with the senators, and ultimately saw his nomination rejected by the full Senate. Ever since, both Republican and Democratic administrations have coached Supreme Court nominees to steer clear of detailed answers, refusing to weigh too heavily into any legal issue that could come before the court if he or she were to be confirmed out of fear of being accused of having prejudged the issue.

Sen. Richard J. Durbin (D-Ill.) said the evasive answers are not surprising, echoing campaign statements that senators themselves trumpet. "This is an art form we have developed," he said.

The nomination now moves to the full Senate, which is expected to take up the matter after an energy legislation debate that should begin next week. That makes a confirmation vote likely in the first week of August, before the Senate adjourns for a 5 1/2-week break.

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