# Elana Kagan

Kagan confirmed to Supreme Court; Grassley votes no

The U.S. Senate confirmed Elana Kagan as associate justice of the U.S. Supreme Court today on a 63-37 vote. As he did on the Judiciary Committee, Senator Chuck Grassley voted against confirmation. He explained his reasoning in more detail this week, and I’ve posted his prepared floor statement after the jump. It amuses me to see Grassley question Kagan’s “commitment to the Constitution and rule of law” when he is open to revising the clear, unambiguous meaning of the 14th Amendment because of current Republican views on immigration.

Last summer Grassley voted against confirming President Obama’s first Supreme Court nominee, Sonia Sotomayor. Before that, Grassley had never opposed confirming a president’s nominee for the high court.

Five Senate Republicans voted to confirm Kagan: Susan Collins and Olympia Snowe of Maine, Lindsey Graham of South Carolina, Richard Lugar of Indiana and Judd Gregg of New Hampshire. Ben Nelson of Nebraska was the only Democrat to vote no. In fact, NPR reported that Nelson just became the first Democrat to vote against a Democratic president’s Supreme Court nominee since Lyndon Johnson nominated Thurgood Marshall in 1967.

UPDATE: Senator Tom Harkin’s statement on the Kagan confirmation is after the jump.

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Grassley will vote against confirming Kagan to Supreme Court

Chuck Grassley will vote no when the Senate Judiciary Committee takes up Elana Kagan’s nomination to the Supreme Court today, he announced today. In a statement, Grassley said Kagan “failed to answer directly” many questions asked during her confirmation hearings. Supreme Court nominees proposed by Republican presidents have likewise declined to answer certain questions in committee, but Grassley said “candid answers” were needed from Kagan because “she has no previous judicial experience.” I posted the full text of Grassley’s statement below. He also told Radio Iowa that Kagan won’t exercise “judicial restraint” and will “let her own private views enter in” as opposed to interpreting the law. (No word on whether he found Kagan to be “aggressive” or “obnoxious.”)

It’s rich to hear Republicans talk about judicial restraint when judicial activism has “become a defining feature of the Roberts Court’s unfolding legacy” (see also here).

Click here to watch a YouTube video of Grassley questioning Kagan during Judiciary Committee hearings in late June. Radio Iowa and Blog for Iowa summarized the exchanges between Grassley and Kagan, which covered guns rights and gay marriage, among other issues.

Grassley voted to confirm both of President Bill Clinton’s nominees for the Supreme Court as well as all judges nominated by Republican presidents Ronald Reagan, George H. W. Bush and George W. Bush. Some Iowa conservatives have been grumbling about Grassley in recent years, so perhaps that explains his opposition to confirming Sonia Sotomayor last year and now Kagan.

UPDATE: Media Matters compiled a list of “45 myths and falsehoods” about Kagan’s nomination.

SECOND UPDATE: The Judiciary Committee voted 13-6 to confirm Kagan. All committee Democrats and Republican Lindsey Graham of South Carolina voted yes.

“No one spent more time trying to beat President Obama than I did, except maybe Senator McCain,” Mr. Graham said Tuesday, referring to the 2008 presidential election and Senator John McCain  of Arizona, Mr. Obama’s Republican rival. “I missed my own election – I voted absentee. But I understood: we lost, President Obama won. The Constitution, in my view, puts a requirement on me not to replace my judgment for his.”

Mr. Graham said there were “100 reasons” he could vote against Ms. Kagan if he based his vote on her philosophy, which is at odds with his. But he said she met a time-honored standard for judicial nominees: whether they are qualified and of good character.

As a senator, Mr. Obama adopted a different standard, saying it was permissible to vote against a nominee based on judicial philosophy, not just qualifications. Mr. Graham said that approach undermined the judicial confirmation process, by making it more partisan.

“Something’s changing when it comes to the advice and consent clause,” he said. “Senator Obama was part of the problem, not part of the solution.”

THIRD UPDATE: The reaction from Grassley’s Democratic challenger Roxanne Conlin is after the jump.

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Obama seeks to move Supreme Court to the right

Numerous media reported tonight that Monday morning, President Barack Obama will nominate his solicitor general, Elana Kagan, to the U.S. Supreme Court. The Above the Law blog saw several “clues” over the last few days that the president would pick Kagan.

I always expected Obama to choose corporate-friendly pro-choice moderate judges like President Bill Clinton’s appointees, Ruth Bader Ginsburg and Stephen Breyer. Instead, Obama is choosing a corporate-friendly pro-choice “blank slate.” Kagan is a lot less qualified than Sonia Sotomayor, whom Obama named to the high court last year. She probably will turn out to be more conservative than Justice John Paul Stevens, whom she will replace if confirmed.

Constitutional lawyer Glenn Greenwald laid out a devastating case against Kagan last month, and he supplemented that on Sunday with more links and commentary.

As far as I can tell, Obama gets two things out of this nomination: a chance to show off how “moderate” he is by enraging liberals, and a Supreme Court justice who will support any expansion of executive power begun under President George W. Bush and continued during the current administration.

If tonight’s reports are true, Obama is on the verge of making one of the biggest mistakes of his presidency. We may all pay for that decades into the future.

UPDATE: To be clear, I’m not advocating a progressive fight against confirming Kagan. That would be pointless and doomed to fail. I wish the president had named someone who would be a counter-weight to the four right-wing ideologues on the court, but not surprisingly, he chose a different course. I guess we’ll all have to hope that Lawrence Lessig is right about Kagan. Incidentally, I didn’t find Walter Dellinger’s case for her convincing; Greenwald decimated that piece here.

Meanwhile, we can count on conservatives to make idiotic arguments against Kagan. Media Matters previews and rebuts 15 “myths” about her nomination we’re likely to hear in the coming weeks.

SECOND UPDATE: Right on cue, the conservative National Review Online blog attacks Kagan’s “remoteness” from the average American because she did not learn to drive until her late 20s.

THIRD UPDATE: Democratic Senate candidate Tom Fiegen released the following statement regarding Kagan’s nomination:

“The President’s nomination of Ms. Kagan is an opportunity for our senior senator Chuck Grassley to either objectively advise and consent to the nomination or to bow to right wing forces in his party which took down Utah U.S. Senator Bob Bennett. Iowans will be watching to see whether Senator Grassley represents us or the most extreme wing of his own party.”

My money’s on “most extreme wing of his own party.” But at least this time Grassley will be able to remember why he voted against the president’s nominee.

FOURTH UPDATE: Oops, I forgot to post Grassley’s statement:

“A lifetime appointment requires a thorough vetting and I expect Elena Kagan to receive fair, respectful and deliberative consideration.  The Constitution gives the Senate a tremendous responsibility to carefully review the President’s nominees to the Supreme Court.   The Judiciary Committee must take time to ensure that the nominee will be true to the Constitution and apply the law, not personal politics, feelings or preferences.  With no judicial experience, it becomes even more important that we ask thorough questions to determine that Ms. Kagan truly understands the constitutional role of a Supreme Court justice.”

Senator Tom Harkin released this statement:

“Elena Kagan is extremely qualified.  She has the intellect and experience necessary to serve on our nation’s highest Court and her stellar legal credentials have been recognized by liberal and conservative lawyers alike.  She clerked for two judges for whom I have enormous respect – Judge Abner Mikva and Justice Thurgood Marshall.  I am also encouraged that in this nomination, the President selected a candidate from outside of the Judiciary.  Elena Kagan is recognized as one of the leading legal educators in our country.  

“I am confident that, if confirmed, she will be an important voice on our Court for the rule of law and constitutional rights and values.  She will ensure equality and give proper effect to our most important statutes, such as the Americans with Disabilities Act and Civil Rights Act, so our most vulnerable citizens receive the fullest protections of the law.

“Elena Kagan’s nomination comes after a series of firsts in her career – first female Dean of Harvard Law School and first female Solicitor General – setting the stage for what may be only the fourth woman to serve on the Court in our history.”

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New Supreme Court nominee speculation thread

MSNBC’s First Read reported today:

Per NBC’s Pete Williams and Savannah Guthrie, administration officials say at least eight names are on President Obama’s list of potential Supreme Court nominees. Six are women and two men. The names: U.S. Solicitor General Elena Kagan, Diane Wood of the 7th Circuit Court of Appeals, Merrick Garland of the DC Court of Appeals, Homeland Security Secretary Janet Napolitano, Michigan Gov. Jennifer Granholm, former George Supreme Court Chief Judge Leah Ward Sears, Sidney Thomas of the 9th Circuit, and Harvard Law School Dean Martha Minow. Of these names, people outside the government but familiar with White House thinking say the serious contenders are Kagan, Wood, Garland, Napolitano, and Granholm. Guthrie adds that Obama is likely to meet next week with key senators to discuss the vacancy. Many of the new additions are about interest group appeasement. And note the growing concern in the liberal/progressive blogosphere about Kagan.

One person who doesn’t sound concerned about Kagan is Republican Senator Lindsey Graham of South Carolina:

“I like her,” he said, quickly adding, “and that might hurt her chances.”

Graham, whose support for Justice Sonia Sotomayor last summer was a turning point in her confirmation process, said he liked Kagan’s answers about national security and the president’s broad authority to detain enemy combatants when she was going through her own Senate confirmation.

Both of President Bill Clinton’s Supreme Court nominees had received a private stamp of approval from key Republican Senator Orrin Hatch. My hunch is that Graham’s kind words for Kagan help her chances with President Obama. He loves to position himself as a moderate between the left and the right.

What do you think?

UPDATE: Chris Bowers made the case for Sears here.

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Justice Stevens confirms plan to retire this year

Supreme Court Justice John Paul Stevens has confirmed that he will retire this June, as court observers have anticipated for some time. According to the Washington Post,

Aides and Democrats close to the process named three people as likely front-runners for the job: Solicitor General Elena Kagan, whom Obama appointed as the first woman to hold the post, and two appellate court judges, Diane Wood of Chicago and Merrick Garland of Washington.

I’m relieved to know that the Senate will be able to confirm Stevens’ successor while Democrats still have a sizable majority. We are likely to lose 3-8 Senate seats this November.

Whomever Obama appoints will probably get a lecture from Senator Chuck Grassley during confirmation hearings this summer. With any luck the person will turn out not to be “aggressive” and “obnoxious.”

Any comments or predictions about the upcoming Supreme Court nomination are welcome in this thread.

UPDATE: Chris Bowers makes the case for former Georgia Supreme Court Justice Leah Ward Sears.

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