The US Senate opened debate on the nomination of Elena Kagan to the US Supreme Court on Tuesday, with Democrats praising her intelligence, good humor, and moderate judicial philosophy and Republicans predicting that she’ll use her seat to advance a liberal agenda.
Although the expected three-day discussion on the Senate floor is intended to examine Ms. Kagan’s suitability for a lifetime appointment to the high court, the senators’ comments Tuesday often reflected a larger debate over the future course of American law – including the constitutionality of President Obama’s health-care reform law.
While Republicans attacked Kagan’s lack of judicial experience and limited experience as a lawyer, Democrats countered by attacking the conservative wing of the Supreme Court under Chief Justice John Roberts.
Senate Judiciary Committee Chair Patrick Leahy (D) of Vermont said the court’s conservatives are engaged in an activist campaign to enforce a “radical conservative agenda.”
He warned that if left unchecked, the high court might invalidate a century of legal precedents affirming the power of the national government to “look out for the welfare of the American people.”
“Law matters in people’s lives,” Senator Leahy said. “She understands this.”
“To my mind the president made a wise choice,” Sen. Diane Feinstein (D) of California added.
In preparing for the debate, the Senate Judiciary Committee examined 170,000 pages of documents and questioned the nominee for 18 hours over three days. “What repeatedly emerges from all this is that Elena Kagan is a pragmatist, a problem solver, and a conciliator,” Senator Feinstein said.
Leading the opposition to her confirmation, Sen. Jeff Sessions (R) of Alabama said Kagan had been less than candid in her Senate testimony. At times, he said, “her testimony was more consistent with White House spin than the truth.”
Senator Sessions said Kagan has been described as collegial, engaging, and a consensus-builder. But he said the qualities he considered most important for a judge were discipline, restraint, and rigorous intellectual honesty.
“Americans are sick of political spin by politicians, and they don’t want it from judges,” he said.
Kagan is expected to win relatively easy confirmation. So far, five Republicans have announced that they intend to vote for her and one Democrat has said he will vote against her. The final vote is expected Thursday.
Kagan was nominated by President Obama to fill the seat of retiring Justice John Paul Stevens. If confirmed she would become only the fourth woman to serve as a Supreme Court justice and her service in the court’s fall term would mark the first time three women sat together on the same nine-member court.
In her career, Kagan has achieved several historic firsts – breaking two glass ceilings. She was the first woman to serve as dean of Harvard Law School, and she was the first woman confirmed as US Solicitor General.
She has worked for the past year and a half in that job, arguing the government’s cases at the Supreme Court.
Among issues raised by Republican opponents are her actions in barring military recruiting at Harvard Law School’s office of career services at a time when federal law required recruiters be given full access to students.
Some senators object to her involvement as a White House policy advisor who prevented an effort to ban a partial-birth abortion procedure. Critics say she appeared motivated to protect the policy and legal position of pro-choice advocates in the divisive issue.
In addition, questions have been raised about her support for the high court’s recent decisions establishing a right to keep and bear arms. Some Republican senators also question how broadly she might interpret the commerce clause as granting Congress authority to regulate a wide swath of American life, including the President’s health care law.
It isn’t just an issue for Republicans.
“Congress’s authority to promote the general welfare cannot be in doubt,” Leahy said in his speech on the Senate floor. “Growing old no longer means growing poor. Being poor no longer means going without medical care.”
In repeating his earlier announced support for Kagan, Sen. Lindsey Graham (R) of South Carolina said he would vote to confirm the president’s choice even though he was sure he would disagree with many of her decisions at the high court.
Senator Graham said senators on the both the left and the right were so politicizing the Supreme Court nomination process that good people will no longer come forward to serve as judges and justices.
“The judiciary is the most fragile branch of government,” he said. “They have no army. All they have is the force of the Constitution, the respect of the other branches of government, and hopefully the support of the American people.”
He added: “The one thing we don’t want to lose in this country is an independent judiciary. We are putting the men and women willing to serve in these jobs through hell.”