Paul Kane at The Washington Post:
The Senate confirmed U.S. Solicitor General Elena Kagan on Thursday as the 112th justice to the Supreme Court, making her the fourth woman ever to sit on the high court.
On a 63 to 37 vote, Kagan became President Obama‘s second lifetime appointment to the court in the past year — the vote was held a year after Sonia Sotomayor won 68 votes for her confirmation as the court’s first Latina justice.
Five Republicans supported Kagan, 50, to succeed retired justice John Paul Stevens. One Democrat, Ben Nelson (Neb.), was opposed. Kagan, a self-described progressive, is not likely to tilt the balance of the court, given Stevens’s role as a leading liberal jurist the past three decades.
By modern standards, Justice Kagan’s 63 confirmation votes isn’t exactly an overwhelming display of support. Of the Supreme Court’s nine current justices, 63 ranks fairly low — Stevens (98), Kennedy (97), Scalia (98), Ginsburg (96), Breyer (87), Roberts (78), Sotomayor (68) had more, while only Thomas (52) and Alito (58) had fewer.
As for the politics, I’m reminded of something Sen. John McCain (R-Ariz.) said two years ago about the Senate and high court nominees: “When President Bill Clinton nominated Stephen Breyer and Ruth Bader Ginsberg to serve on the high court, I voted for their confirmation, as did all but a few of my fellow Republicans. Why? For the simple reason that the nominees were qualified, and it would have been petty, and partisan, and disingenuous to insist otherwise. Those nominees represented the considered judgment of the president of the United States. And under our Constitution, it is the president’s call to make.”
In the last 12 months, McCain voted against Sotomayor and Kagan.
Truth be told, though, the final margin here was kabuki in the same way that the final votes on ObamaCare were kabuki: Once the margin needed for passage was secured, everyone else was free to vote however they needed to in order to protect themselves at the polls. The GOP clearly didn’t want to risk a filibuster on someone as bland as Kagan, preferring to preserve the novelty of the nuclear option for maximum effect in case The One nominates a bombthrower next time, so people like Scott Brown got to vote no today even though I bet he would have been a yes had Reid really needed him. Speaking of which, why did Scotty B. vote no? Looks like he’s more worried about a tea-party primary challenge at this point than he is about pissing off centrist Massachusetts Dems in the general. Eeenteresting.
With Stevens gone, the oldest justice on the Court now is Ginsburg at 77. Which means it might be awhile yet before we get a truly atomic confirmation hearing involving The One trying to replace a Republican appointee. Apres Ruth, le deluge
The confirmation took place as a thunderstorm raged outside, prompting several wry Tweets as the votes were tallied:
@keithcrc: SuperStorm pounds DC just as #Kagan confirmation vote is taken #someonesnothappy
@kathyrnlopez: the thunderstorms over dc echo my kagan-vote mood this afternoon.
@Winghunter: @michellemalkin If they think that’s a storm, they ain’t seen nuthin’ yet.
Damon Root at Reason:
It’s official. The U.S. Senate has confirmed Elena Kagan to the Supreme Court by a vote of 63-37. What sort of justice will she turn out to be? For some sobering predictions, here’s a sampling of Reason’s coverage of Kagan’s ideas and her Senate confirmation hearing:
Natural Reluctance. Elena Kagan’s disturbing refusal to acknowledge pre-existing rights. By Jacob Sullum.
Elena Kagan on Free Speech, Executive Power, and Judicial Restraint. Will Obama’s Supreme Court pick show too much deference to the government? By Damon Root.
Will Elena Kagan Allow Books to be Banned? Understanding the Supreme Court nominee’s chilling argument in Citizens United. By Daniel Shuchman.
“She is certainly a fan of presidential power.” By Radley Balko.
Jonathan Bernstein at The New Republic:
I didn’t post (or tweet) much during the floor debate, because, well, it was pretty dull. Look, this isn’t a partisan blog, so unlike United States Senators I can be honest about these things. This is politics. The Supreme Court is part of the political system; their decisions, while certainly driven by law and precedent, are nonetheless political actions. Elena Kagan was chosen because the president believes she’ll be a reliable vote on the Supreme Court, and because he hopes that she’ll be so for a long time — exactly the same reason that every nominee has been chosen for at least the last couple decades. Republicans opposed her because they think she’ll be a reliable vote for a long time. However, there’s a lot of pretense about the Court not being political, and most everyone believes in retaining that pretense. All of which leads to a lot of convoluted statements on both sides. The Republicans spent an hour (at least) on guns this morning, arguing that Kagan didn’t believe in Second Amendment rights…but she claimed she did, so she couldn’t be trusted. At one point, one of the Senators (sorry, I forgot to make a note of it. Sessions?) proclaimed his incredulity at Kagan’s claims to have not studied the historical record surrounding the Second Amendment. And so he had to vote against her, not because she’s not a reliable vote on guns, but because her lack of honesty on that issue disqualified her. It was, of course, the mirror image of Democrats who said the same things when Republican nominees claimed in the past to never have given any thought to abortion. Of course, the truth is that Republicans support gun rights, Kagan probably doesn’t agree with them, and that — and not questions of trust or lofty judicial philosophy or, certainly, the “empathy standard” that the GOP goes on about — is why they oppose her. It’s fine, but it doesn’t make for very interesting floor debate.