Elena Kagan Supreme Court nomination
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, a position to which Obama had appointed her to in March 2009. That same year, the president considered her for nomination to the Court to succeed retiring Associate Justice David Souter, but passed over her in favor of Sonia Sotomayor.
Speculation regarding the nomination of Elena Kagan
On April 9, 2010, Justice John Paul Stevens announced he would retire at the start of the Court's summer 2010 recess, triggering new speculation about potential replacements, and Kagan was considered a contender. One year earlier, she had been on President Barack Obama's short-list of potential candidates to succeed retiring Associate Justice David Souter, but was passed over in favor of Sonia Sotomayor. In a Fresh Dialogues interview, Jeffrey Toobin, a Supreme Court analyst and Kagan's friend and law school classmate, speculated that she would be Obama's nominee, describing her as "very much an Obama-type person, a moderate Democrat, a consensus builder".
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'[according to whom?]. Republicans were quick 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. Even so, a few expressed support for her, including Lindsey Graham, Susan Collins and Richard Lugar. Additionally, minority whip Jon Kyl all but ruled out using a filibuster to block a final Senate floor vote on the nomination, telling CBS's Face the Nation, "The filibuster should be relegated to extreme circumstances, and I don't think Elena Kagan represents that."
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.
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. At the same time, the Brady Campaign to Prevent Gun Violence announced its support for Kagan's nomination.
Several witnesses were called to give testimony before the Judiciary Committee at the hearings. These witnesses included Kim Askew and William J. Kayatta, Jr. of the American Bar Association. The Democratic members of the committee called witnesses that included:
- 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:
- 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 Guar* 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
After the completion of testimony, Republicans on the Judiciary Committee successfully delayed a vote on forwarding the nomination to the full Senate for one week. On July 20, the committee voted 13–6 to endorse and forward the nomination, with only one Republican, Lindsey Graham, voting in the affirmative.
The Senate confirmed Elena Kagan to be an associate justice of the Supreme Court on August 5, 2010, by a vote of 63–37. All Democrats, except for Ben Nelson, voted for her, as did Independents Joe Lieberman and Bernie Sanders, and five Republicans: Susan Collins, Lindsey Graham, Judd Gregg, Richard Lugar and Olympia Snowe.
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- 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