Published Online: August 5, 2010

Senate Confirms Kagan as U.S. Supreme Court Justice

The U.S. Senate on Thursday confirmed Elena Kagan as the 112th justice and fourth woman to serve on the Supreme Court.

The vote was 63-37 for President Barack Obama's nominee to succeed retired Justice John Paul Stevens. Five Republicans joined all but one Democrat and the Senate's two independents to support Kagan. In a rarely practiced ritual reserved for the most historic votes, senators sat at their desks and stood to cast their votes with "ayes" and "nays."

Kagan has extensive experience in education policy, both as dean of Harvard Law School and through work on numerous K-12 issues as a domestic policy aide to President Bill Clinton. Those issues surfaced during her confirmation hearings, as senators asked about memos she had written on education-related documents during her time in the Clinton White House and while she was a law clerk for Supreme Court Justice Thurgood Marshall in the late 1980s. ("Kagan Vows to Shun 'Political Hat' on High Court," July 13, 2010.)

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The Kagan papers released by the Clinton Presidential Library in Little Rock, Ark., revealed little about her own views on such issues as education funding, testing, social promotion, and school violence. What was clear from the hundreds of pages of documents, however, was that the White House domestic-policy office, where Kagan worked from 1997 to 1999, was deeply involved in education issues, often coordinating with the U.S. Department of Education. Clinton aides viewed education initiatives—whether ambitious, such as an effort to reauthorize the Elementary and Secondary Education Act, or modest, such as a proposal to promote school uniforms—as something that connected with voters and helped cement the president's legacy. ("Papers Show Kagan in Loop on Clinton K-12 Policy," School Law Blog, June 6, 2010.)

During the confirmation hearings, Sen. Jeff Sessions, R-Ala., also challenged Kagan about her handling of military recruiters while she was dean of Harvard Law School, asking whether she was hostile to recruiters in applying Harvard's non-discrimination policy.

"I respect, indeed, I revere the military,” Kagan told him. “My father was veteran. ... I always tried to make sure I conveyed my honor to the military. In the short period the recruiters had that access through the veterans organization, recruiting actually went up. But I also felt the need to protect the students meant to be protected by [Harvard's non-discrimination policy], the gay and lesbian students who might want to join the military.” ("Kagan, Sessions Spar on Harvard Recruiting Issue," School Law Blog, June 29, 2010.)

Kagan isn't expected to alter the ideological balance of the court, where Stevens was considered a leader of the liberals. But the two parties clashed over her nomination. Republicans argued that Kagan was a political liberal who would be unable to be impartial. Democrats defended her as a highly qualified legal scholar.

She is the first Supreme Court nominee in nearly 40 years with no experience as a judge, and her swearing-in will mark the first time in history that three women will serve on the nine-member court together.

Her lack of judicial experience was the stated reason for one fence-sitting Republican, Sen. Scott Brown of Massachusetts, to announce his opposition to her confirmation Thursday, just hours before the vote. Though calling her "brilliant," Brown — who had been seen as a potential GOP supporter — said she was missing the necessary background to serve as a justice.

"The best umpires, to use the popular analogy, must not only call balls and strikes, but also have spent enough time on the playing field to know the strike zone," Brown said.

Vol. 29, Issue 37

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