WASHINGTON — 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 63-37, Kagan, who will succeed retired Justice John Paul Stevens, became the second member President Barack 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 resume 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 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 of Nebraska, opposed her. Kagan watched the vote with her Justice Department colleagues in the solicitor general’s conference room.
Chief Justice John Roberts will swear her in at the court Saturday.
Political career
Democrats hailed Kagan’s legal acumen and suggested that her widely acknowledged charm might appeal to the critical swing vote of Justice Anthony Kennedy on the nine-member court. Of her career, Senate Majority Leader Harry 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, R-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 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.
Kagan won praise from members of Colorado’s congressional delegation, including Democratic Sen. Michael Bennet, who said she “meets the highest standard of intellect and achievement,” and Democratic Sen. Mark Udall, who said, “I am confident that she will bring her passion for justice and the rule of law to defending and supporting it.”
Rep. Diana DeGette, D-Colo., also applauded the confirmation, saying, “With a history of building consensus across diverse coalitions, Kagan brings important leadership to the bench.”
On the bench
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 — the so-called 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, and many eyes will be on her relationship with Roberts, 55. The two youngest members of the court are likely to serve together for decades.
