Gavel Grab

The Supreme Court came a step closer today to having three female justices, for the first time in its history.

A generally polarized Senate Judiciary Committee voted 13-6, with one Republican joining the Democratic majority, to endorse confirmation of Elena Kagan. The full Senate is expected to confirm Kagan, the former Harvard Law School dean who was selected by President Obama as his first solicitor general, when it votes within the next few weeks.

Sen. Lindsey Graham of South Carolina was the lone Republican to break ranks with his colleagues on the committee, the Los Angeles Times reported.

“What’s in Elena Kagan’s heart is that of a good person who adopts a philosophy I disagree with,” Graham said, according to an Associated Press article. “She will serve this nation honorably, and it would not have been someone I would have chosen, but the person who did choose, President Obama, I think chose wisely.”

Other Republican senators questioned whether her political viewpoints would take priority over the law, and they criticized what they depicted as her liberal agenda on various issues, including abortion and gun rights and military recruitment at Harvard law.

“Ms. Kagan’s record shows that she supports an activist judicial philosophy, and that her personal and political views drive her legal views,” said Sen. Orrin Hatch, R-Utah.

Democratic senators, on the other hand, applauded her as fair-minded and committed to deciding cases based on the law, not on ideology. Her top rating from the American Bar Association for the Supreme Court bench also was noted, according to a Reuters report.

Obama issued a statement, according to USA Today, saying the committee vote was “a bipartisan affirmation of her strong performance during her confirmation hearings.”

Nominated to replace Justice John Paul Stevens, Kagan, 50, would not shift the court’s ideological balance if confirmed.

In an editorial on the eve of the committee vote, USA Today said Kagan deserves bipartisan support, but it will be lacking:

“The shame is that approval won’t come with the same bipartisan impulse that saw the Senate confirm conservative Justice Antonin Scalia 98-0 in 1986 and liberal Justice Ruth Bader Ginsburg 96-3 seven years later….The arguments made by her detractors are unimpressive.”

In an opposing commentary in the same newspaper, Sen. Jeff Sessions, R-Ala. wrote:

“Throughout her career, Ms. Kagan has placed her politics above the law. She has never been a judge, never tried a case before a jury and has practiced law for only three years. She is the least experienced nominee in the last half-century.”

A New York Times editorial focused on debate over Kagan’s confirmation through the lens of the Constitution’s commerce clause, which has been interpreted to expand the federal government’s power. The editorial noted that Kagan refused to suggest limits to the commerce clause during committee questioning, and it concluded this way:

“Make no mistake that such a vote [against Kagan] is simply about her, or about President Obama. A vote against the commerce clause is a vote against some of the best things that government has done for the better part of a century, and some of the best things that lie ahead.”

The editorial mentions that interpretation of the commerce clause may figure prominently in the outcome of mounting legal challenges to the federal health care overhaul law. A lengthier commentary on both political fighting over the judiciary and the health care law is in a Huffington Post article entitled, “Who’s Ahead in the War Over the Courts; After Kagan’s Hearing the First Court Skirmish Over Health Reform?”

Justice at Stake covered the Kagan hearings on Twitter, and you can check out the Twitter reports by clicking on http://twitter.com/justicestake. You also can learn more about Kagan from Gavel Grab and from the JAS Replacing Justice Stevens page.

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