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'[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.[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[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.[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]

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[edit]


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]


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[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[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.[12]

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).

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
Alabama Jeff Sessions R Nay
Alabama Richard Shelby R Nay
Alaska Mark Begich D Yea
Alaska Lisa Murkowski R Nay
Arizona Jon Kyl R Nay
Arizona John McCain R Nay
Arkansas Blanche Lincoln D Yea
Arkansas Mark Pryor D Yea
California Barbara Boxer D Yea
California Dianne Feinstein D Yea
Colorado Michael Bennet D Yea
Colorado Mark Udall D Yea
Connecticut Chris Dodd D Yea
Connecticut Joe Lieberman I Yea
Delaware Tom Carper D Yea
Delaware Ted Kaufman D Yea
Florida George LeMieux R Nay
Florida Bill Nelson D Yea
Georgia Saxby Chambliss R Nay
Georgia Johnny Isakson R Nay
Hawaii Daniel Akaka D Yea
Hawaii Daniel Inouye D Yea
Idaho Mike Crapo R Nay
Idaho Jim Risch R Nay
Illinois Roland Burris D Yea
Illinois Dick Durbin D Yea
Indiana Evan Bayh D Yea
Indiana Richard Lugar R Yea
Iowa Chuck Grassley R Nay
Iowa Tom Harkin D Yea
Kansas Sam Brownback R Nay
Kansas Pat Roberts R Nay
Kentucky Jim Bunning R Nay
Kentucky Mitch McConnell R Nay
Louisiana Mary Landrieu D Yea
Louisiana David Vitter R Nay
Maine Susan Collins R Yea
Maine Olympia Snowe R Yea
Maryland Ben Cardin D Yea
Maryland Barbara Mikulski D Yea
Massachusetts Scott Brown R Nay
Massachusetts John Kerry D Yea
Michigan Carl Levin D Yea
Michigan Debbie Stabenow D Yea
Minnesota Al Franken D Yea
Minnesota Amy Klobuchar D Yea
Mississippi Thad Cochran R Nay
Mississippi Roger Wicker R Nay
Missouri Kit Bond R Nay
Missouri Claire McCaskill D Yea
Montana Max Baucus D Yea
Montana Jon Tester D Yea
Nebraska Mike Johanns R Nay
Nebraska Ben Nelson D Nay
Nevada John Ensign R Nay
Nevada Harry Reid D Yea
New Hampshire Judd Gregg R Yea
New Hampshire Jeanne Shaheen D Yea
New Jersey Frank Lautenberg D Yea
New Jersey Bob Menendez D Yea
New Mexico Jeff Bingaman D Yea
New Mexico Tom Udall D Yea
New York Kirsten Gillibrand D Yea
New York Chuck Schumer D Yea
North Carolina Richard Burr R Nay
North Carolina Kay Hagan D Yea
North Dakota Kent Conrad D Yea
North Dakota Byron Dorgan D Yea
Ohio Sherrod Brown D Yea
Ohio George Voinovich R Nay
Oklahoma Tom Coburn R Nay
Oklahoma Jim Inhofe R Nay
Oregon Jeff Merkley D Yea
Oregon Ron Wyden D Yea
Pennsylvania Bob Casey Jr. D Yea
Pennsylvania Arlen Specter D Yea
Rhode Island Jack Reed D Yea
Rhode Island Sheldon Whitehouse D Yea
South Carolina Jim DeMint R Nay
South Carolina Lindsey Graham R Yea
South Dakota Tim Johnson D Yea
South Dakota John Thune R Nay
Tennessee Lamar Alexander R Nay
Tennessee Bob Corker R Nay
Texas John Cornyn R Nay
Texas Kay Bailey Hutchison R Nay
Utah Bob Bennett R Nay
Utah Orrin Hatch R Nay
Vermont Patrick Leahy D Yea
Vermont Bernie Sanders I Yea
Virginia Mark Warner D Yea
Virginia Jim Webb D Yea
Washington Maria Cantwell D Yea
Washington Patty Murray D Yea
West Virginia Carte Goodwin D Yea
West Virginia Jay Rockefeller D Yea
Wisconsin Russ Feingold D Yea
Wisconsin Herb Kohl D Yea
Wyoming John Barrasso R Nay
Wyoming Mike Enzi R Nay

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

See also[edit]

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

    1. ^ Greenburg, Jan Crawford (2009-05-07). "White House Formalizes Supreme Court Short List". ABC News. 
    2. ^ "Kagan Quizzed About Thurgood Marshall's Record". NPR. June 29, 2010. 
    3. ^ Goldstein, Amy (2010-06-15). "69 law school deans endorse Kagan in letter to Senate". Washingtonpost.com. Retrieved 2010-07-01. 
    4. ^ James Oliphant, NRA opposes Kagan confirmation, L.A. Times (July 2, 2010).
    5. ^ 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. 
    6. ^ Dann, Carrie (June 28, 2010). "Live-blogging the Kagan hearing". MSNBC. Archived from the original on June 30, 2010. Retrieved June 28, 2010. 
    7. ^ a b c d "Kagan hearings witness list released". The Washington Post. 
    8. ^ "Judiciary Panel to Vote July 20 on Kagan's Nomination". businessweek.com. 2010-07-13. Retrieved 2010-07-13. [permanent dead link]
    9. ^ "Judiciary Committee Approves Kagan to Supreme Court". The New York Times. 2010-07-20. Retrieved 2010-07-20. 
    10. ^ "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. 
    11. ^ "Jon Kyl: GOP won't filibuster Kagan - Kendra Marr". Politico.Com. Retrieved 2010-07-01. 
    12. ^ Oliphant, James (2010-08-05). "Elena Kagan appears assured of becoming next Supreme Court justice". Los Angeles Times. 

    Further reading[edit]

    External links[edit]