WASHINGTON — Solicitor General Elena Kagan won Senate confirmation Thursday to the U.S. Supreme Court, where President Obama's second nominee will make history as three women will serve at the same time on the nine-member court.
The 63-37 vote, largely along party lines, was no surprise after the 50-year-old former Harvard Law School dean sailed through her Senate Judiciary Committee hearing. Kagan will join justices Ruth Bader Ginsburg and Sonia Sotomayor for the fall term, which begins Oct. 4.
Obama said the vote "wasn't just an affirmation of Elena's intellect and accomplishments. It was also an affirmation of her character and her temperament; her open-mindedness and even-handedness; her determination to hear all sides of every story and consider all possible arguments."
During this week's Senate debate, Democrats
lauded Kagan, a self-described progressive who will become the only sitting justice without prior experience as a judge, as a fresh, different voice, while Republicans painted her as unqualified and harboring dangerous liberal tendencies.
"Solicitor General Kagan's experience outside the judicial monastery will be valuable to her when she is confirmed," Senate Judiciary Committee Chairman Patrick Leahy of Vermont said during the debate. "No one can question the intelligence or achievements of this woman."
Republicans, though, raised questions.
"I have too many questions about Elena Kagan's judicial philosophy to permit me to support her nomination to a lifetime appointment to the Supreme Court of the United States," said Kansas Sen. Sam Brownback in a statement. "A nominee's judicial philosophy is a key concern at the heart of the Supreme Court confirmation process. This concern is especially pertinent now in light of the more activist role the Court has taken in recent years."
The court already has agreed to hear 37 cases in its next term, about half the number it likely will hear. Kagan is expected to meet with the other justices sometime next month for private conferences to decide which other cases may be considered.
Among the issues likely to confront Kagan is a challenge to a new federal court decision striking down California's ban on gay marriage.
As solicitor general, Kagan had been the Obama administration's chief attorney arguing cases before the court, and will not participate in cases where she was involved in appellate proceedings, notably a challenge to mandatory minimum prison sentences imposed on armed drug dealers.
Kagan, who succeeds Justice John Paul Stevens, who retired from the court in June at age 90 and was generally considered part of the liberal wing, is unlikely to shift the philosophical balance.
However, Kagan will go in with a political tinge, a trend that's become apparent in recent years. Until recently, the unwritten rule of court confirmations was that if someone was qualified, politics were put aside. President Bill Clinton's two choices, Ginsburg and Stephen Breyer, were confirmed with only three and nine opposing votes, respectively.
Then Democrats mounted partisan challenges to President George W. Bush's nominees, and attempted a filibuster against Samuel Alito in January 2006. The effort failed when it got only 25 of the 60 votes needed — Obama, then a U.S. senator from Illinois, favored the extended debate — and Republicans have since mounted similar challenges to Obama's nominees.
Kagan, determined not to fuel any partisan ire, answered nearly 700 questions during her confirmation hearing and was careful — as all recent Supreme Court nominees have been — not to suggest how she might decide cases. She noted, though, that "I've been a Democrat all my life," so most Republicans didn't buy the idea that she'd bring an open mind to the bench.