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, 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.
Speculation regarding the nomination of Elena Kagan
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'[according to whom?]. 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.
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.
Confirmation hearings began on June 28, 2010, the final day of the Court's term. 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. 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 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
The Senate Judiciary Committee scheduled a recommendation vote for July 20, 2010. 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.
At the time, it was also possible for a nominee to be filibustered, which would have required 60 votes to overcome (Vice President Joe Biden had no vote in such a 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—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."
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.
56 of the 57 Senate Democrats voted to confirm Kagan. The only Democrat who rejected the confirmation was Ben Nelson (D-NE). Both of 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).
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- Greenburg, Jan Crawford (2009-05-07). "White House Formalizes Supreme Court Short List". ABC News.
- "Kagan Quizzed About Thurgood Marshall's Record". NPR. June 29, 2010.
- Goldstein, Amy (2010-06-15). "69 law school deans endorse Kagan in letter to Senate". Washingtonpost.com. Retrieved 2010-07-01.
- James Oliphant, NRA opposes Kagan confirmation, L.A. Times (July 2, 2010).
- 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.
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- "Some in GOP backing Kagan - The Boston Globe". Boston.com. 2010-06-02. Archived from the original on October 26, 2012. Retrieved 2010-07-01.
- "Jon Kyl: GOP won't filibuster Kagan - Kendra Marr". Politico.Com. Retrieved 2010-07-01.
- Oliphant, James (2010-08-05). "Elena Kagan appears assured of becoming next Supreme Court justice". Los Angeles Times.
- 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 .
- 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 .
- 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