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 in March 2009.

Elena Kagan with President Barack Obama and Vice President Joe Biden in the East Room of the White House, May 10, 2010.

Nomination

Potential candidates

On April 9, 2010, John Paul Stevens announced that he would retire from the Supreme Court on June 29, at the start of Court's summer 2010 recess. He had served as an associate justice for 34 years.[1] Those considered front-runners for the nomination by press reports, in addition to Elena Kagan, were: Diane Wood and Merrick Garland.[2] Kagan had also been a finalist for the Court vacancy one year earlier, when Justice Sonia Sotomayor was selected to succeed the retiring David Souter.[3]

Announcement

President Barack Obama announced the nomination of Elena Kagan to the Supreme Court on May 10, 2010.[3] He praised Kagan as a "consensus builder", and said that she "is widely regarded as one of the nation's foremost legal minds".[4] The nomination was formally received by the Senate that same day, and was subsequently referred to the Judiciary Committee.[5]

Response to the nomination

In the Senate, Kagan's nomination was received positively by most Democrats. Judiciary Committee chairman Patrick Leahy applauded Kagan's experience and qualifications. In doing so, he called attention to her work in academia and with the federal government – noting that both were outside the so-called "judicial monastery" from which most contemporary justices have come. The last justices to join the Court without any prior judicial experience had been Lewis Powell and William Rehnquist, both appointed by President Richard Nixon in 1972.[6]

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.[7] Even so, minority whip Jon Kyl, who supported Kagan's nominations for solicitor general (a "temporary political appointment") but was reticent to support her associate justice (a "lifetime appointment"),[6] 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."[8] Opposition to Kagan among Senate Republicans was not universal however. A few expressed support for her, including Lindsey Graham, Susan Collins and Richard Lugar.[9]

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.[10]

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.[11] At the same time, the Brady Campaign to Prevent Gun Violence announced its support for Kagan's nomination.[12]

Confirmation hearing

Senate Judiciary Committee Chairman Patrick Leahy swears in Kagan during her first day of testimony.

Kagan's Confirmation hearing before the Senate Judiciary Committee began on June 28, 2010.[13] From the 28th through the 30th, Kagan underwent two rounds of questioning by each member of the committee.

Senate Majority Leader Harry Reid meeting with Kagan.

Judiciary Chairman Patrick Leahy meeting with Kagan.

Several witnesses were called to give testimony before the Judiciary Committee at the hearings.[14] These witnesses included Kim Askew and William J. Kayatta, Jr. of the American Bar Association.[14] The Democratic members of the committee called witnesses that included:[14]

• 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:[14]

• 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

Senate votes

Committee

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.[15] On July 20, the committee voted 13–6 to endorse and forward the nomination, with only one Republican, Lindsey Graham, voting in the affirmative.[16]

Full Senate

President Obama signing Kagan's commission, August 6, 2010, following Senate confirmation.

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.[17][18]

Vote to confirm the Kagan nomination
August 5, 2010	Party			Total votes
	Democratic	Republican	Independent
Yea	56	05	02	63
Nay	01	36	00	37
Result: Confirmed
Roll call vote on the nomination Senator Party State Vote Daniel Akaka D Hawaii Yea Lamar Alexander R Tennessee Nay John Barrasso R Wyoming Nay Max Baucus D Montana Yea Evan Bayh D Indiana Yea Mark Begich D Alaska Yea Michael Bennet D Colorado Yea Bob Bennett R Utah Nay Jeff Bingaman D New Mexico Yea Kit Bond R Missouri Nay Barbara Boxer D California Yea Scott Brown R Massachusetts Nay Sherrod Brown D Ohio Yea Sam Brownback R Kansas Nay Jim Bunning R Kentucky Nay Richard Burr R North Carolina Nay Roland Burris D Illinois Yea Maria Cantwell D Washington Yea Ben Cardin D Maryland Yea Tom Carper D Delaware Yea Bob Casey Jr. D Pennsylvania Yea Saxby Chambliss R Georgia Nay Tom Coburn R Oklahoma Nay Thad Cochran R Mississippi Nay Susan Collins R Maine Yea Kent Conrad D North Dakota Yea Bob Corker R Tennessee Nay John Cornyn R Texas Nay Mike Crapo R Idaho Nay Jim DeMint R South Carolina Nay Chris Dodd D Connecticut Yea Byron Dorgan D North Dakota Yea Dick Durbin D Illinois Yea John Ensign R Nevada Nay Mike Enzi R Wyoming Nay Russ Feingold D Wisconsin Yea Dianne Feinstein D California Yea Al Franken D Minnesota Yea Kirsten Gillibrand D New York Yea Carte Goodwin D West Virginia Yea Lindsey Graham R South Carolina Yea Chuck Grassley R Iowa Nay Judd Gregg R New Hampshire Yea Kay Hagan D North Carolina Yea Tom Harkin D Iowa Yea Orrin Hatch R Utah Nay Kay Bailey Hutchison R Texas Nay Jim Inhofe R Oklahoma Nay Daniel Inouye D Hawaii Yea Johnny Isakson R Georgia Nay Mike Johanns R Nebraska Nay Tim Johnson D South Dakota Yea Ted Kaufman D Delaware Yea John Kerry D Massachusetts Yea Amy Klobuchar D Minnesota Yea Herb Kohl D Wisconsin Yea Jon Kyl R Arizona Nay Mary Landrieu D Louisiana Yea Frank Lautenberg D New Jersey Yea Patrick Leahy D Vermont Yea George LeMieux R Florida Nay Joe Lieberman I Connecticut Yea Blanche Lincoln D Arkansas Yea Carl Levin D Michigan Yea Richard Lugar R Indiana Yea John McCain R Arizona Nay Claire McCaskill D Missouri Yea Mitch McConnell R Kentucky Nay Bob Menendez D New Jersey Yea Jeff Merkley D Oregon Yea Barbara Mikulski D Maryland Yea Lisa Murkowski R Alaska Nay Patty Murray D Washington Yea Ben Nelson D Nebraska Nay Bill Nelson D Florida Yea Mark Pryor D Arkansas Yea Jack Reed D Rhode Island Yea Harry Reid D Nevada Yea Jim Risch R Idaho Nay Pat Roberts R Kansas Nay Jay Rockefeller D West Virginia Yea Bernie Sanders I Vermont Yea Chuck Schumer D New York Yea Jeff Sessions R Alabama Nay Jeanne Shaheen D New Hampshire Yea Richard Shelby R Alabama Nay Olympia Snowe R Maine Yea Arlen Specter D Pennsylvania Yea Debbie Stabenow D Michigan Yea Jon Tester D Montana Yea John Thune R South Dakota Nay Mark Udall D Colorado Yea Tom Udall D New Mexico Yea David Vitter R Louisiana Nay George Voinovich R Ohio Nay Mark Warner D Virginia Yea Jim Webb D Virginia Yea Sheldon Whitehouse D Rhode Island Yea Roger Wicker R Mississippi Nay Ron Wyden D Oregon Yea Source: [19]

Kagan's swearing-in ceremony took place on August 7, 2010, at the White House. Chief Justice John Roberts administered the prescribed constitutional and judicial oaths of office, at which time she became the 112th justice (100th associate justice) of the Supreme Court.[20][21]

See also

• Demographics of the Supreme Court of the United States
• Barack Obama Supreme Court candidates

References

1. De Vogue, Ariane (April 9, 2010). "Liberal Justice John Paul Stevens to Retire From Court". ABC News. Retrieved June 20, 2019.
2. "Profiles of three possible successors to Justice John Paul Stevens". The Los Angeles Times. April 10, 2010. Retrieved June 20, 2019.
3. "Obama chooses Elena Kagan for Supreme Court". CNN. May 12, 2010. Retrieved June 20, 2019.
4. "Kagan Likely To Be Pressed On Writings, Experience". NPR. May 10, 2010. Retrieved June 20, 2019.
5. McMillion, Barry J.; Rutkus, Denis Steven (July 6, 2018). "Supreme Court Nominations, 1789 to 2017: Actions by the Senate, the Judiciary Committee, and the President" (PDF). CRS Report (RL33225). Washington, D.C.: Congressional Research Service. Retrieved June 17, 2019.
6. Dwyer, Devin; Wolf, Z. Byron; Karl, Jonathan (May 10, 2010). "Elena Kagan: Obama Nom Heads to Senate". ABC News. Retrieved June 22, 2019.
7. "Kagan Quizzed About Thurgood Marshall's Record". NPR. June 29, 2010.
8. Marr, Kendra (May 16, 2010). "Kyl: GOP won't filibuster Kagan". Politico. Retrieved June 1, 2019.
9. "Some in GOP backing Kagan". The Boston Globe. June 2, 2010. Archived from the original on October 26, 2012. Retrieved June 1, 2019.
10. Goldstein, Amy (2010-06-15). "69 law school deans endorse Kagan in letter to Senate". Washingtonpost.com. Retrieved 2010-07-01.
11. James Oliphant, NRA opposes Kagan confirmation, L.A. Times (July 2, 2010).
12. 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.
13. Dann, Carrie (June 28, 2010). "Live-blogging the Kagan hearing". MSNBC. Archived from the original on June 30, 2010. Retrieved June 28, 2010.
14. "Kagan hearings witness list released". The Washington Post.
15. Crabtree, Susan (July 13, 2010). "Republicans force one-week delay in Judiciary panel's Kagan vote". The Hill. Retrieved June 1, 2019.
16. "Judiciary Committee approves Elena Kagan for the Supreme Court, sending nomination to Senate". Fox News. Associated Press. July 20, 2010. Retrieved June 1, 2019.
17. Crabtree, Susan; Rushing, J. Taylor (August 6, 2010). "Kagan confirmed to Supreme Court". The Hill. Retrieved June 1, 2019.
18. Dwyer, Devin; Jaffe, Jeff (August 5, 2010). "Senate Confirms Elena Kagan to Supreme Court". ABC News. Retrieved June 1, 2019.
19. "Roll Call Vote 111th Congress – 2nd Session (vote number 229)". senate.gov. August 5, 2010. Retrieved June 1, 2019.
20. Julie Hirschfeld Davis (August 7, 2010). "Kagan sworn in as Supreme Court justice: She won't be formally installed as a justice until Oct. 1". Associated Press. Retrieved August 7, 2010.
21. "Associate Justice Elena Kagan Swearing-in Ceremony". Washington, D.C.: Supreme Court of the United States. Retrieved June 22, 2019.

Further reading

• 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 1717006.
• 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 2432111.

External links

• 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