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Kagan confirmation gives Obama, Democratic leadership in Senate a clear victory

Elena Kagan, the first woman to serve as dean of Harvard Law School and solicitor general of the United States, won confirmation Thursday to a seat on the U.S. Supreme Court.

She becomes the 112th person to don the robes of America’s highest court, and only the fourth woman to serve as a justice. The vote was 63 to 37.

Her confirmation offers President Obama and the Democratic leadership in the Senate a clear victory as the senators head home for their August recess.

The confirmation also sets the stage for a historic event in early October when the high court convenes for its new term. It will mark the first time three women will serve together as justices on the nine-member Supreme Court.

Despite firm opposition from most Republicans during three days of debate on the Senate floor, Kagan won relatively easy confirmation. There were no surprises. And no attempt at a filibuster.

In the end, five Republicans voted for her and one Democrat, Sen. Ben Nelson of Nebraska, voted against her. Last year, nine Republicans voted to confirm Mr. Obama’s first Supreme Court nominee, Sonia Sotomayor, whose total vote was 68-31.

Speaking from the floor of the Senate, majority leader Harry Reid enumerated his reasons for supporting Kagan.

“Because of her intellect and integrity; her reason, restraint and respect for the rule of law; her unimpeachable character and unwavering fidelity to our Constitution, I am proud to cast my vote for her confirmation,” Senator Reid (D) of Nevada said.

Senate minority leader Mitch McConnell (R) of Kentucky packed a host of objections to Kagan in his statement opposing her.

“Ms. Kagan’s background as a political operative, her lengthy resume of zealous advocacy for political and ideological causes, often at the expense of the law and those whose views differ from her own, her attachment to the president and his political and ideological goals, including his belief in the extra-constitutional notion that judges should favor some over others make her precisely the kind of nominee, in my view, the Founders were concerned about and that senators would have reason to oppose,” Senator McConnell said.

Kagan, 50, was nominated by Obama to replace retiring Justice John Paul Stevens, 90, who had served on the court for 34 years. Her selection is seen by analysts as an attempt by Obama to reconstitute the high court’s liberal wing with relatively young justices able to challenge Chief Justice John Roberts and his conservative colleagues – perhaps for decades.

Kagan’s arrival on the court is not expected to result in a significant shift in the general balance of power between the court’s conservatives and liberals. She is assumed to be a safe liberal vote on most issues, similar to the voting characteristics of retiring Justice Stevens.

It is difficult to predict how she might vote in particular cases because, having never been a judge, she has no paper trail of judicial decisions. In addition, during her confirmation hearings she avoided candid discussion of her approach to judging and how she might analyze certain areas of constitutional law as a justice.

Kagan will join the court as the only justice (among the current lineup) with no prior work experience as a judge. She had been nominated in 1999 by President Clinton for a seat on the federal appeals court in Washington, a court considered a stepping stone to the high court. But Clinton’s term ended and her nomination died.

Instead, she went on to become the first woman to serve as dean at Harvard Law School. In 2009, President Obama appointed her solicitor general, where she served as the government’s top lawyer before the US Supreme Court. She won high praise in both roles.

The big uncertainty among Republicans is what kind of justice Kagan will become. Will she chart a moderate and modest course, they ask, or will she seek to use her power on the bench to advance a liberal social agenda?

During the hearings Republicans took issue with Kagan’s decision as dean at Harvard Law School to ban military recruiters from the school’s office of career services. In testimony she told the Senate Judiciary Committee that the military enjoyed full access to Harvard students during her tenure as dean.

Republicans said the statement was false. They said federal law required the school (and Dean Kagan) to afford military recruiters full and equal access to students, not simply some access.

The Republicans charged that Kagan defied federal law because it clashed with her personal views opposing the military’s antigay “don’t ask, don’t tell” policy.

Republican opponents also cited concerns about how Kagan might rule in cases involving gun rights, property rights, abortion, and the scope of congressional power, among other issues.

Supporters emphasized Kagan’s stellar academic credentials, her infectious sense of humor, and her ability to build consensus. Some analysts suggest these skills could help her become not just an effective and influential justice, but a leader of the court’s liberal wing.

Kagan was born in New York City and grew up on the Upper West Side of Manhattan. She attended Princeton, Oxford University, and Harvard Law School.

After law school she clerked for Washington appeals court judge Abner Mikva, and then for Justice Thurgood Marshall at the US Supreme Court.

She worked for two years as an associate at Williams & Connolly in Washington, and then became a law professor at the University of Chicago.

Kagan was special counsel to Sen. Joe Biden during the confirmation hearings of Ruth Bader Ginsburg. She also served as an associate counsel to President Clinton and as deputy director of Clinton’s domestic policy council.

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