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Senate confirms Elena Kagan's nomination to Supreme Court

By Paul Kane and Robert Barnes
Washington Post Staff Writer
Friday, August 6, 2010; A01

The Senate confirmed U.S. Solicitor General Elena Kagan on Thursday as the 112th justice to the Supreme Court, making her the fourth woman to sit on the court.

On a vote of 63 to 37, Kagan, who will succeed retired justice John Paul Stevens, became the second member President Obama has placed on the high court. One year ago, Sonia Sotomayor won confirmation as the court's first Latina.

Some Democrats have said they hope that the lifetime appointment of Kagan, a consensus-building liberal, will nudge the court slightly to the left.

Her confirmation is considered unlikely to immediately shift the court's ideology, however. Although she is expected to fit comfortably within the liberal wing of the court, she does not seem to be as liberal as Stevens was during his final years on the bench.

Along with her relative youth, Kagan, 50, brings a résumé unlike any of those with whom she will serve.

She will be the first appointee since 1972 to join the court with no judicial experience. Other justices have corporate law backgrounds or a long record of arguing before the court. Kagan worked briefly for a law firm and argued her first case before an appellate court 11 months ago. It happened to be before the Supreme Court, the first of six cases she argued as the nation's first female solicitor general.

Five Senate Republicans supported Kagan. One Democrat, Ben Nelson (Neb.), opposed her. Kagan watched the vote with her Justice Department colleagues in the solicitor general's conference room. Chief Justice John G. Roberts Jr. will swear her in at the court on Saturday.

Democrats hailed Kagan's legal acumen and suggested that her widely acknowledged charm might appeal to the critical swing vote of Justice Anthony M. Kennedy on the nine-member court. Of her career, Senate Majority Leader Harry M. Reid (D-Nev.) said: "She has brought people together of every ideological stripe."

Republicans criticized Kagan's lack of judicial experience and questioned whether she would adhere to "the rule of law." Senate Minority Leader Mitch McConnell (Ky.) called her "someone who has worked tirelessly to advance a political agenda."

Kagan will join Sotomayor and Justice Ruth Bader Ginsburg in the first bloc of three women serving on the court at the same time. Once she is sworn in, three Ivy League law schools -- Harvard, Yale and Columbia -- will have bragging rights as the alma maters of all nine justices.

Kagan's confirmation continues a period of remarkable change for the court; she is the fourth new justice in the past five years. The former Harvard Law School dean is replacing a 90-year-old legend who served longer than almost any other justice.

The experience Kagan brings to the court is from the political world of Washington. During her tenure as a policy adviser in the Clinton White House, she was deeply involved in the making of policy, not its legal interpretation, and was in the thick of administration efforts to craft legislative compromise, sway public opinion and count votes in Congress.

Because of her work as solicitor general, she has already identified about a dozen cases from which she will recuse herself, including the first case on the court's opening day of the term, Oct. 4, regarding laws related to mandatory minimum sentencing for convicted criminals.

After Thursday's Senate vote, several Democrats on the Judiciary Committee expressed hope that she will show deference to laws that the administration and Congress agree benefit the country. "The court has eaten the lunch of the Congress, and very few people even recognize it," said Sen. Arlen Specter (Pa.).

Kagan's lack of judicial experience probably will hamper her at first -- she has, after all, never written an opinion. But she has also been pointing toward this day since posing in judicial robes in a high school yearbook photo.

As solicitor general -- often referred to as the "10th justice" -- she has had the chance to become well-acquainted with her new colleagues.

Kagan appears to have an easy rapport with her ideological opposite, Justice Antonin Scalia. She held a lavish dinner for him at Harvard, where he attended law school, and he responded to Republican criticism about her lack of judicial experience by defending her background.

More intriguing will be her relationship with Roberts, 55. The two youngest members of the court are likely to serve together for decades and already have a complicated past.

In the late 1990s, President Bill Clinton selected Kagan for a seat on the U.S. Court of Appeals for the D.C. Circuit, but the Republican-controlled Senate never brought her nomination for a vote. The job was filled by Roberts. Kagan went on to become the dean of Harvard Law School.

Roberts is tough on many of the advocates who argue before the court, but he has been particularly blunt with Kagan. He labeled one of her arguments "startling." Some court observers think they have a natural rivalry; others say their encounters receive more attention because she has been mentioned as a candidate for the court ever since she became solicitor general.

Her supporters are less focused on her relationship with the chief justice and more on how she bonds with Kennedy, who will continue to sit in the middle of a court with four solid conservatives and four firm liberals.

"Her great strength, I believe, is that of a conciliator, a reconciler, being able to bring people together, and we've had a whole raft of 5-4 decisions," said Sen. Dianne Feinstein (D-Calif.).

Kagan avoided the sort of scrutiny that some nominees have faced, as much of political Washington focused on other issues -- such as the war in Afghanistan and the oil spill in the Gulf of Mexico -- throughout the spring and summer. According to the Gallup polling group, support for Kagan's confirmation slipped from 46 percent to 44 percent after her confirmation hearings in late June. More than 20 percent of voters had no view of her, making her the least-known Supreme Court nominee in nearly two decades.

At her hearings, Kagan faced questions about her role in forbidding the military from recruiting on the Harvard Law campus, but she deflected the issue by explaining her effort to balance the university's prohibition against any form of discrimination and the military's "don't ask, don't tell" rule for gays.

She bantered with the Judiciary Committee's Democrats and Republicans, winning praise from both sides in a manner similar to Roberts in 2005. Still, Kagan did not win as many votes as Roberts, who had the backing of 78.

"The Supreme Court is not a social club," McConnell said.

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