Elena Kagan Supreme Court nomination

Elena Kagan with President Barack Obama and Vice President Joe Biden in the East Room of the White House, May 10, 2010.

On May 10, 2010, President Barack Obama announced his selection of Elena Kagan for Associate Justice of the Supreme Court of the United States, to replace retiring Justice John Paul Stevens. Kagan's nomination was confirmed by a 63–37 vote of the United States Senate on August 5, 2010.

When nominated, Kagan was Solicitor General of the United States, to which she had been appointed by Barack Obama. She had previously been a contender for the retiring David Souter's seat in 2009, but was passed over in favor of current Supreme Court Justice Sonia Sotomayor.^[1]

Speculation regarding the nomination of Elena Kagan

President Barack Obama nominates Kagan to the Supreme Court (14 min 6 secs)

Prior to her reported selection as Obama's nominee, Kagan had been appointed as Solicitor General of the United States. In May 2009, she was widely speculated to be a nominee acceptable to fill the seat of retiring Supreme Court Justice David Souter. The seat was eventually filled by Judge Sonia Sotomayor of the Second Circuit.

Response to Kagan's nomination

In the Senate, Kagan's nomination was received positively by most Democrats, who praised her abilities and the fact that she came from outside the so-called 'judicial monastery' . Republicans were quicker to express criticism, particularly over her handling of military recruiters during her time as Dean of Harvard Law School, as well as her work as a law clerk for the late Justice Thurgood Marshall, whom many of them deemed a liberal activist.^[2]

Activist Michael Johns and tea party members demonstrate against Kagan on July 1, 2010.

The deans of over one-third of the country's law schools, 69 people in total, endorsed Elena Kagan's nomination in an open letter in early June. The letter lauded what it considered her coalition-building skills and "understanding of both doctrine and policy" as well as her written record of legal analysis.^[3]

The National Rifle Association announced its opposition to Kagan, and stated that it would score the vote on her confirmation, meaning that Senators who vote in favor of Kagan would receive a lower rating from the organization.^[4] At the same time, the Brady Campaign to Prevent Gun Violence announced its support for Kagan's nomination.^[5]

Confirmation hearings

Senate Judiciary Committee Chairman Patrick Leahy swears in Kagan during her first day of testimony.

Confirmation hearings began on June 28, 2010, the final day of the Court's term.^[6] From the 28th through the 30th, Kagan underwent two rounds of questioning by each member of the Senate Judiciary Committee.

Several witnesses were called to give testimony before the Judiciary Committee at the hearings.^[7] These witnesses included Kim Askew and William J. Kayatta, Jr. of the American Bar Association.^[7] The Democratic members of the committee called witnesses that included:^[7]

• Professor Robert C. Clark, Harvard University Distinguished Service Professor, Austin Wakeman Scott Professor of Law, and former Dean, Harvard Law School
• Fernande "Nan" Duffly, Associate Justice, Massachusetts Court of Appeals, on behalf of the National Association of Women Judges
• Greg Garre, Partner, Latham & Watkins, former Solicitor General of the United States
• Jennifer Gibbins, Executive Director, Prince William Soundkeeper
• Jack Goldsmith, Professor of Law, Harvard University
• Marcia Greenberger, Founder and Co-President, National Women's Law Center
• Jack Gross, plaintiff, Gross v. FBL Financial Services, Inc.
• Lilly Ledbetter, plaintiff, Ledbetter v. Goodyear Tire & Rubber Co.
• Professor Ronald Sullivan, Edward R. Johnston Lecturer on Law, Director of the Criminal Justice Institute, Harvard Law School
• Kurt White, President, Harvard Law Armed Forces Association

Republican members of the committee called the following witnesses:^[7]

• Robert Alt, Senior Fellow and Deputy Director, Center for Legal and Judicial Studies, The Heritage Foundation
• Lt. Gen. William "Jerry" Boykin, United States Army (ret.)
• Capt. Pete Hegseth, Army National Guard
• Commissioner Peter Kirsanow, Benesch Law Firm
• David Kopel, Esq., Research Director, Independence Institute
• Colonel Thomas N. Moe, United States Air Force (ret.)
• David Norcross, Esq., Blank Rome
• William J. Olson, Esq., William J. Olson, P.C.
• Tony Perkins, President, Family Research Council
• Stephen Presser, Raoul Berger Professor of Legal History, Northwestern University School of Law
• Ronald Rotunda, The Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University School of Law
• Ed Whelan, President, Ethics and Public Policy Center
• Dr. Charmaine Yoest, President & CEO, Americans United for Life
• Capt. Flagg Youngblood, United States Army

Senate votes

Committee

The Senate Judiciary Committee scheduled a recommendation vote for July 20, 2010 ^[8] On that day the committee voted to endorse Kagan on a 13 to 6 vote, with only one Republican, Lindsey Graham, siding with the nominee.^[9]

Filibuster

It is also possible for a nominee to be filibustered, which would require 60 votes to overcome (Vice President Joe Biden has no vote in this case), as occurred during the nomination of Abe Fortas to the Supreme Court in 1968. There were 41 Republican senators at the time of Kagan's confirmation, making a one-party filibuster possible. However, five Republicans—Richard Lugar, Lindsey Graham, Judd Gregg, Olympia Snowe, and Susan Collins^[10]—expressed support for her. In addition, minority whip Jon Kyl said "The filibuster should be relegated to extreme circumstances, and I don't think Elena Kagan represents that."^[11]

Full Senate

In the full Senate, a simple majority is required for confirmation. With all 100 senators present and voting, 50 votes (plus the tiebreaking vote of the vice president) would have been sufficient to confirm Kagan’s nomination. The full senate confirmed the nomination on Thursday, August 5, 2010, by a vote of 63-37.^[12]

56 of the 57 Senate Democrats voted to confirm Kagan. The only Democrat who rejected the confirmation was Ben Nelson (D-NE). Both the Senate independents, Joe Lieberman (ID-CT) and Bernie Sanders (I-VT), voted to confirm Kagan. Additionally, five Senate Republicans broke party lines and voted to confirm Kagan; these were Richard Lugar (R-IN), Susan Collins (R-ME), Olympia Snowe (R-ME), Judd Gregg (R-NH), and Lindsey Graham (R-SC).

Senate Majority Leader Harry Reid meeting with Kagan.

Judiciary Chairman Patrick Leahy meeting with Kagan.

Senator Herb Kohl meeting with Kagan.

Senator Ted Kaufman meeting with Kagan.

Senator Sherrod Brown meeting with Kagan.

President Obama signing Kagan's commission after Senate confirmation.

Notes: D = Democratic; R = Republican; I = independent; ID = Independent Democratic

See also

Wikinews has related news: US Supreme Court nominee Elena Kagan meets with senators on Capitol Hill US Senate confirms Supreme Court nominee Elena Kagan

• Timeline of the Presidency of Barack Obama (2010)
• Demographics of the Supreme Court of the United States
• Barack Obama Supreme Court candidates

References

Further reading

• Bybee, Keith J. (2011). "Will the Real Elena Kagan Please Stand Up? Conflicting Public Images in the Supreme Court Confirmation Process" (PDF). Wake Forest Journal of Law & Policy. 1 (1): 137–156. SSRN 1717006. 
• Devins, Neal; Baum, Lawrence (2016). "Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court". William & Mary Law School Research Paper No. 09-276. SSRN 2432111. 

External links

• Solicitor General Elena Kagan Supreme Court Confirmation Process at C-SPAN
• Kagan Faces Confirmation Questioning on Political Leanings, Guns, Military Recruiting, and Abortion - video report by Democracy Now!
• The Nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States: Hearing before the Committee on the Judiciary, United States Senate, One Hundred Eleventh Congress, Second Session, June 28-30 and July 1, 2010. Errata