Elena Kagan Supreme Court nomination

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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[edit]

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[edit]

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.

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.[2]

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.[3] At the same time, the Brady Campaign to Prevent Gun Violence announced its support for Kagan's nomination.[4]

Future recusal issues[edit]

Due to her involvement in a number of key cases it is expected that Kagan may have to recuse herself from 11 of the 24 cases which the court has agreed to hear beginning in October 2010. It is also speculated that Kagan might eventually have to step aside from two to three dozen cases over the next few years.[5] Republican members of the Senate Judiciary Committee asked that Kagan commit to recusing herself from hearing cases relating to the Patient Protection and Affordable Care Act enacted in 2010, which Kagan declined to do.[6]

Confirmation hearings[edit]

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.[7] 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.[8] These witnesses included Kim Askew and William J. Kayatta, Jr. of the American Bar Association.[8] The Democratic members of the committee called witnesses that included:[8]

  • Professor Robert C. Clark, Harvard University Distinguished Service Professor, Austin Wakeman Scott Professor of Law, and former Dean, Harvard Law School
  • Justice Fernande "Nan" Duffly, Associate Justice, Massachusetts Court of Appeals, on behalf of the National Association of Women Judges
  • Greg Garre, Partner, Lathan & Watkins, former Solicitor General of the United States
  • Jennifer Gibbins, Executive Director, Prince William Soundkeeper
  • Professor 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
  • 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:[8]

  • 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[edit]

Committee[edit]

The Senate Judiciary Committee scheduled a recommendation vote for July 20, 2010 [9] 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.[10]

Filibuster[edit]

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[11] - 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."[12]

Full Senate[edit]

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.[13]

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.
State Senator Party Confirmation as
Solicitor-
General,
March 19,
2009
( 61–31 )
Confirmation as
Supreme Court
Justice,
August 5,
2010
( 63–37 )
Hawaii Akaka, DanielDaniel Akaka D Yea Aye
Tennessee Alexander, LamarLamar Alexander R Nay No
Wyoming Barrasso, JohnJohn Barrasso R Nay No
Montana Baucus, MaxMax Baucus D Yea Aye
Indiana Bayh, EvanEvan Bayh D Yea Aye
Alaska Begich, MarkMark Begich D Yea Aye
Colorado Bennet, MichaelMichael Bennet D Yea Aye
Utah Bennett, RobertRobert Bennett R Nay No
New Mexico Bingaman, JeffJeff Bingaman D Yea Aye
Missouri Bond, KitKit Bond R Nay No
California Boxer, BarbaraBarbara Boxer D Not Voting Aye
Ohio Brown, SherrodSherrod Brown D Yea Aye
Massachusetts Brown, ScottScott Brown R (not in Senate) No
Kansas Brownback, SamSam Brownback R Nay No
Kentucky Bunning, JimJim Bunning R Nay No
North Carolina Burr, RichardRichard Burr R Nay No
Illinois Burris, RolandRoland Burris D Yea Aye
West Virginia Byrd, RobertRobert Byrd D Yea (not in Senate)
Washington Cantwell, MariaMaria Cantwell D Yea Aye
Maryland Cardin, BenBen Cardin D Yea Aye
Delaware Carper, TomTom Carper D Yea Aye
Pennsylvania Casey, Jr., BobBob Casey, Jr. D Yea Aye
Georgia Chambliss, SaxbySaxby Chambliss R Nay No
Oklahoma Coburn, TomTom Coburn R Yea No
Mississippi Cochran, ThadThad Cochran R Not Voting No
Maine Collins, SusanSusan Collins R Yea Aye
North Dakota Conrad, KentKent Conrad D Yea Aye
Tennessee Corker, BobBob Corker R Nay No
Texas Cornyn, JohnJohn Cornyn R Nay No
Idaho Crapo, MikeMike Crapo R Nay No
South Carolina DeMint, JimJim DeMint R Nay No
Connecticut Dodd, ChristopherChristopher Dodd D Yea Aye
North Dakota Dorgan, ByronByron Dorgan D Yea Aye
Illinois Durbin, DickDick Durbin D Yea Aye
Nevada Ensign, JohnJohn Ensign R Not Voting No
Wyoming Enzi, MikeMike Enzi R Nay No
Wisconsin Feingold, RussRuss Feingold D Yea Aye
California Feinstein, DianneDianne Feinstein D Yea Aye
Minnesota Franken, AlAl Franken D (not in Senate) Aye
New York Gillibrand, KirstenKirsten Gillibrand D Yea Aye
West Virginia Goodwin, CarteCarte Goodwin D (not in Senate) Aye
South Carolina Graham, LindseyLindsey Graham R Not Voting Aye
Iowa Grassley, ChuckChuck Grassley R Nay No
New Hampshire Gregg, JuddJudd Gregg R Yea Aye
North Carolina Hagan, KayKay Hagan D Yea Aye
Iowa Harkin, TomTom Harkin D Yea Aye
Utah Hatch, OrrinOrrin Hatch R Yea No
Texas Hutchison, Kay BaileyKay Bailey Hutchison R Nay No
Oklahoma Inhofe, JimJim Inhofe R Nay No
Hawaii Inouye, DanielDaniel Inouye D Yea Aye
Georgia Isakson, JohnnyJohnny Isakson R Nay No
Nebraska Johanns, MikeMike Johanns R Nay No
South Dakota Johnson, TimTim Johnson D Yea Aye
Delaware Kaufman, TedTed Kaufman D Yea Aye
Massachusetts Kerry, JohnJohn Kerry D Yea Aye
Minnesota Klobuchar, AmyAmy Klobuchar D Not Voting Aye
Wisconsin Kohl, HerbHerb Kohl D Yea Aye
Arizona Kyl, JonJon Kyl R Yea No
Louisiana Landrieu, MaryMary Landrieu D Yea Aye
New Jersey Lautenberg, FrankFrank Lautenberg D Yea Aye
Vermont Leahy, PatrickPatrick Leahy D Yea Aye
Florida LeMieux, GeorgeGeorge LeMieux R (not in Senate) No
Michigan Levin, CarlCarl Levin D Yea Aye
Connecticut Lieberman, JoeJoe Lieberman Ind D Yea Aye
Arkansas Lincoln, BlancheBlanche Lincoln D Yea Aye
Indiana Lugar, RichardRichard Lugar R Yea Aye
Florida Martinez, MelMel Martinez R Nay (not in Senate)
Arizona McCain, JohnJohn McCain R Nay No
Missouri McCaskill, ClaireClaire McCaskill D Yea Aye
Kentucky McConnell, MitchMitch McConnell R Nay No
New Jersey Menendez, BobBob Menendez D Yea Aye
Oregon Merkley, JeffJeff Merkley D Yea Aye
Maryland Mikulski, BarbaraBarbara Mikulski D Yea Aye
Alaska Murkowski, LisaLisa Murkowski R Nay No
Washington Murray, PattyPatty Murray D Not Voting Aye
Nebraska Nelson, BenBen Nelson D Yea No
Florida Nelson, BillBill Nelson D Yea Aye
Arkansas Pryor, MarkMark Pryor D Yea Aye
Rhode Island Reed, JackJack Reed D Yea Aye
Nevada Reid, HarryHarry Reid D Yea Aye
Idaho Risch, JimJim Risch R Nay No
Kansas Roberts, PatPat Roberts R Nay No
West Virginia Rockefeller, JayJay Rockefeller D Yea Aye
Vermont Sanders, BernieBernie Sanders Ind Yea Aye
New York Schumer, ChuckChuck Schumer D Yea Aye
Alabama Sessions, JeffJeff Sessions R Nay No
New Hampshire Shaheen, JeanneJeanne Shaheen D Yea Aye
Alabama Shelby, RichardRichard Shelby R Nay No
Maine Snowe, OlympiaOlympia Snowe R Yea Aye
Pennsylvania Specter, ArlenArlen Specter R→D Nay Aye
Michigan Stabenow, DebbieDebbie Stabenow D Yea Aye
Montana Tester, JonJon Tester D Yea Aye
South Dakota Thune, JohnJohn Thune R Nay No
Colorado Udall, MarkMark Udall D Yea Aye
New Mexico Udall, TomTom Udall D Yea Aye
Louisiana Vitter, DavidDavid Vitter R Nay No
Ohio Voinovich, GeorgeGeorge Voinovich R Nay No
Virginia Warner, MarkMark Warner D Yea Aye
Virginia Webb, JimJim Webb D Yea Aye
Rhode Island Whitehouse, SheldonSheldon Whitehouse D Yea Aye
Mississippi Wicker, RogerRoger Wicker R Nay No
Oregon Wyden, RonRon Wyden D Yea Aye
vote by
party
  for
against
not voting
vacant
52 D, 2 ind, 7 R
31 R
4 D, 3 R
1
56 D, 2 ind, 5 R
1 D, 36 R
0
0
Sources U.S. Senate 2009 2010
Washington Post 2009 2010

Notes: D = Democratic; R = Republican; Ind = independent; Ind D = Independent Democratic;
R→D = moved from Republican to Democratic caucus on April 29–30, 2009

See also[edit]

References[edit]

  1. ^ Greenburg, Jan Crawford (2009-05-07). "White House Formalizes Supreme Court Short List". ABC News. 
  2. ^ Goldstein, Amy (2010-06-15). "69 law school deans endorse Kagan in letter to Senate". Washingtonpost.com. Retrieved 2010-07-01. 
  3. ^ James Oliphant, NRA opposes Kagan confirmation, L.A. Times (July 2, 2010).
  4. ^ Kane, Paul; Goldstein, Amy (2010-07-01). "Kagan expected to be confirmed to Supreme Court with little Republican support". Washington Post. Retrieved 2010-07-12. 
  5. ^ Mark Sherman, Kagan had role in Clinton White House’s big fights, Associated Press, June 13, 2010
  6. ^ GOP presses Kagan on health reform recusal, Politico (July 13, 2010).
  7. ^ Dann, Carrie (June 28, 2010). "Live-blogging the Kagan hearing". MSNBC. Retrieved June 28, 2010. 
  8. ^ a b c d "Kagan hearings witness list released". The Washington Post. 
  9. ^ "Judiciary Panel to Vote July 20 on Kagan’s Nomination". businessweek.com. 2010-07-13. Retrieved 2010-07-13. 
  10. ^ "Judiciary Committee Approves Kagan to Supreme Court". The New York Times. 2010-07-20. Retrieved 2010-07-20. 
  11. ^ "Some in GOP backing Kagan - The Boston Globe". Boston.com. 2010-06-02. Retrieved 2010-07-01. [dead link]
  12. ^ "Jon Kyl: GOP won't filibuster Kagan - Kendra Marr". Politico.Com. Retrieved 2010-07-01. 
  13. ^ Oliphant, James (2010-08-05). "Elena Kagan appears assured of becoming next Supreme Court justice". Los Angeles Times. 

External links[edit]