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Published: 8/6/2010

Senate vote makes Kagan 112th Supreme Court justice

WASHINGTON POST
Elena Kagan Elena Kagan
ALEX BRANDON / AP Enlarge

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

Ms. Kagan, who will succeed retired justice John Paul Stevens, became the second member President Obama has placed on the high court by a 63-37 vote.

One year ago, Sonia Sotomayor won confirmation as the court's first Latina.

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

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

Along with her relative youth, Ms. 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 long record of arguing before the court.

Ms. 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 Ms. Kagan. Democrat Ben Nelson of Nebraska voted no.

Ohio Democrat Sherrod Brown voted in favor and Ohio Republican George Voinovich voted against her. Michigan Democrats Carl Levin and Debbie Stabenow backed the nominee.

Ms. Kagan watched the vote with colleagues in the solicitor general's conference room.

Chief Justice John Roberts will swear her in Saturday.

Democrats hailed Ms. 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 her lack of judicial experience and questioned whether she would adhere to "the rule of law."

Senate Minority Leader Mitch McConnell (R., Ky.) said Ms. Kagan was "someone who has worked tirelessly to advance a political agenda."

She joins Justices Sotomayor and 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.

Ms. Kagan's confirmation continues a period of remarkable change for the court; she is the fourth new justice in 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 she brings to the court is from the political world. During her tenure as a policy adviser in the Clinton White House, she was involved in making 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 identified about a dozen cases from which she will recuse herself, including the first case on the court's first day of the term, Oct. 4, regarding laws related to mandatory minimum sentencing for convicted criminals.

Ms. Kagan's lack of judicial experience may hamper her at first - she has, after all, never written an opinion. As solicitor general - the so-called 10th justice - she has become acquainted with her new colleagues.

Ms. 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 Chief Justice Roberts, 55. As the two youngest members of the court, they have a complicated past and are likely to serve together for decades

In the late 1990s, President Bill Clinton selected Ms. Kagan for a seat on the U.S. Court of Appeals for the District of Columbia Circuit, but the Republican-controlled Senate never brought her nomination for a vote.

Justice Roberts filled the job, and Ms. Kagan went on to become the dean of Harvard Law School.

Chief Justice Roberts is tough on many of the advocates who argue before the court, but he has been particularly blunt with Ms. 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.



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