On May 10, 2010, President of the United States 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 formally submitted to the United States Senate that same day.
When nominated, Kagan was Solicitor General of the United States, to which she had been appointed by Barack Obama. She had previously been a contender for the retiring David Souter's seat in 2009, but was passed over in favor of current Supreme Court Justice Sonia Sotomayor.
Speculation regarding the nomination of Elena Kagan
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President Barack Obama nominates Kagan to the Supreme Court (14 min 6 secs)
Prior to her reported selection as Obama's nominee, Kagan had been appointed as Solicitor General of the United States. In May 2009, she was widely speculated to be a nominee acceptable to fill the seat of retiring Supreme Court Justice David Souter. The seat was eventually filled by Judge Sonia Sotomayor of the Second Circuit.
Senate response
Democratic members of the Senate Judiciary Committee
Herb Kohl of Wisconsin released the following statement:
Elena Kagan appears to be a well-qualified choice. We look forward to reviewing her as a nominee to the Supreme Court and getting a window into her judicial philosophy and legal views during the upcoming hearings. In light of her critique of Supreme Court confirmation hearings as often times a 'vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis,' we certainly do hope that she will provide us with substantive and meaningful insight into the kind of Supreme Court Justice she would be. I will once again convene my bipartisan Supreme Court Task Force to evaluate Elena Kagan's record and qualifications.
Republican-turned-Democrat Arlen Specter of Pennsylvania, stated:
I have an open mind about her nomination and hope she will address important questions related to her position on matters such as executive power, warrantless wiretapping, a woman's right to choose, voting rights and congressional power. There is no doubt that Elena Kagan has exemplary academic and professional credentials.
Republican members of the Senate Judiciary Committee
Lindsey Graham of South Carolina stated:
Solicitor General Kagan has a strong academic background in the law. I have been generally pleased with her job performance as solicitor general, particularly regarding legal issues related to the war on terror.
Jeff Sessions of Alabama, ranking Republican on the Committee, released a statement including the following:
Ms. Kagan's lack of judicial experience and short time as Solicitor General, arguing just six cases before the Court, is troubling. The public expects Supreme Court nominees to possess a mastery of the law, a sound judicial philosophy, and a demonstrated dedication to the impartial application of the law and the Constitution. With no judicial opinions to consider, it will be especially important that other aspects of her record exhibit these characteristics.
In mid-June, 2010, Linda Greenhouse in The New York Times drew attention to Sessions and Senator John Kyl of Arizona addressing memos Kagan had written as a law clerk to Supreme Court Justice Thurgood Marshall in the late 1980s. The senators were reported to have found that the memos showed Kagan "was highly opinionated and wanted to use the law to achieve specific policy results, rather than deciding legal questions on their merits. ... The[y] cited notes Kagan wrote to Marshall in which she argued that the Supreme Court shouldn't take certain cases based on her fear that they would give its conservative majority the chance to scale back abortion and criminal rights, among others."Greenhouse focused her primary attention on another memo which Kagan wrote in September 1987, when the appeal in DeShaney v. Winnebago County first arrived at the Rehnquist Court. While the memo on, or subject matter of, DeShaney was not specifically mentioned in the media by the senators, the memo bore a similar maybe-we-should-wait-for-a-better-time element. In the event, the Justices in 1987 did take the DeShaney appeal and Marshall did find himself in the minority when the Court ruled. Greenhouse concluded her comment with some apparent hope that Kagan would now some time maybe in the far future have the opportunity to look again at as a Justice herself, and reverse, the DeShaney ruling.
Senator John Kyl of Arizona was quoted as calling the Kagan-to-Marshall memos, which Kyl had addressed with Sessions (above), "troubling."
Other Democratic Senators
Senate Democratic Leader Harry Reid of Nevada stated:
I am particularly pleased President Obama has chosen a nominee from outside the judicial monastery. I believe that through her confirmation process, Elena Kagan will demonstrate that her primary allegiance is to fairness, justice and the rule of law, not ideology.
Other Republican Senators
James Inhofe of Oklahoma quickly expressed opposition to the nomination, stating:
The position for which she has been nominated has lifetime tenure, and it is concerning that the president has placed such trust in a nominee that has not been properly vetted through a judicial career, having worked mostly in academia and never before as a judge.
John Cornyn of Texas released the following statement:
There is no doubt that Ms. Kagan possesses a first-rate intellect, but she is a surprising choice from a president who has emphasized the importance of understanding 'how the world works and how ordinary people live,'" he said. "Ms. Kagan has spent her entire professional career in Harvard Square, Hyde Park, and the DC Beltway. These are not places where one learns 'how ordinary people live.' Ms. Kagan is likewise a surprising choice because she lacks judicial experience. Most Americans believe that prior judicial experience is a necessary credential for a Supreme Court Justice."
Other responses
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.
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. At the same time, the Brady Campaign to Prevent Gun Violence announced its support for Kagan's nomination.
Future recusal issues
Due to her involvement in a number of key cases it is expected that Kagan may have to recuse herself from 11 of the 24 cases which the court has agreed to hear beginning in October 2010. It is also speculated that Kagan might eventually have to step aside from two to three dozen cases over the next few years. Republican members of the Senate Judiciary Committee have asked that Kagan commit to recusing herself from hearing cases relating to the Patient Protection and Affordable Care Act enacted in 2010.
Confirmation hearings
Confirmation hearings began on June 28, 2010, the final day of the Court's term. From the 28th through the 30th, Kagan underwent two rounds of questioning by each member of the Senate Judiciary Committee.
Several witnesses were called to give testimony before the Judiciary Committee at the hearings. These witnesses included Kim Askew and William J. Kayatta, Jr. of the American Bar Association. The Democratic members of the committee called witnesses that included:
Professor Robert C. Clark, Harvard University Distinguished Service Professor, Austin Wakeman Scott Professor of Law, and former Dean, Harvard Law School
Justice Fernande "Nan" Duffly, Associate Justice, Massachusetts Court of Appeals, on behalf of the National Association of Women Judges
Greg Garre, Partner, Lathan & Watkins, former Solicitor General of the United States
Jennifer Gibbins, Executive Director, Prince William Soundkeeper
Professor 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
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:
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 Guard
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
The Senate Judiciary Committee scheduled a recommendation vote for July 20, 2010 On that day the committee voted to endorse Kagan on a 13 to 6 vote, with only one Republican, Lindsey Graham, siding with the nominee.
Filibuster
It is also possible for a nominee to be filibustered, which would require 60 votes to overcome (Vice President Joe Biden has no vote in this case), as occurred during the nomination of Abe Fortas to the Supreme Court in 1968. There are 41 Republicans, which does make a filibuster possible. However, six Republicans, Scott Brown, Richard Lugar, Lindsey Graham, Judd Gregg, Olympia Snowe, and Susan Collins have expressed support for her. In addition, Minority whip Jon Kyl said "The filibuster should be relegated to extreme circumstances, and I don't think Elena Kagan represents that."
Full Senate
In the full Senate, a simple majority is required for confirmation. Assuming all 100 senators are present and voting, 50 votes (+ tiebreaker Vice President) would have been sufficient to confirm her nomination. The full senate confirmed the nomination on Thursday, August 5, 2010, at a vote of 63-37.
State | Senator | Party |  Confirmation vote of Elena Kagan |
|---|---|---|---|
| Hawaii | Daniel Akaka | D | Aye |
| Tennessee | Lamar Alexander | R | No |
| Wyoming | John Barrasso | R | No |
| Montana | Max Baucus | D | Aye |
| Indiana | Evan Bayh | D | Aye |
| Alaska | Mark Begich | D | Aye |
| Colorado | Michael Bennet | D | Aye |
| Utah | Robert Bennett | R | No |
| New Mexico | Jeff Bingaman | D | Aye |
| Missouri | Kit Bond | R | No |
| California | Barbara Boxer | D | Aye |
| Ohio | Sherrod Brown | D | Aye |
| Massachusetts | Scott Brown | R | No |
| Kansas | Sam Brownback | R | No |
| Kentucky | Jim Bunning | R | No |
| North Carolina | Richard Burr | R | No |
| Illinois | Roland Burris | D | Aye |
| Washington | Maria Cantwell | D | Aye |
| Maryland | Ben Cardin | D | Aye |
| Delaware | Tom Carper | D | Aye |
| Pennsylvania | Bob Casey, Jr. | D | Aye |
| Georgia | Saxby Chambliss | R | No |
| Oklahoma | Tom Coburn | R | No |
| Mississippi | Thad Cochran | R | No |
| Maine | Susan Collins | R | Aye |
| North Dakota | Kent Conrad | D | Aye |
| Tennessee | Bob Corker | R | No |
| Texas | John Cornyn | R | No |
| Idaho | Mike Crapo | R | No |
| South Carolina | Jim DeMint | R | No |
| Connecticut | Christopher Dodd | D | Aye |
| North Dakota | Byron Dorgan | D | Aye |
| Illinois | Dick Durbin | D | Aye |
| Nevada | John Ensign | R | No |
| Wyoming | Mike Enzi | R | No |
| Wisconsin | Russ Feingold | D | Aye |
| California | Dianne Feinstein | D | Aye |
| Minnesota | Al Franken | D | Aye |
| New York | Kirsten Gillibrand | D | Aye |
| West Virginia | Carte Goodwin | D | Aye |
| South Carolina | Lindsey Graham | R | Aye |
| Iowa | Chuck Grassley | R | No |
| New Hampshire | Judd Gregg | R | Aye |
| North Carolina | Kay Hagan | D | Aye |
| Iowa | Tom Harkin | D | Aye |
| Utah | Orrin Hatch | R | No |
| Texas | Kay Bailey Hutchison | R | No |
| Oklahoma | Jim Inhofe | R | No |
| Hawaii | Daniel Inouye | D | Aye |
| Georgia | Johnny Isakson | R | No |
| Nebraska | Mike Johanns | R | No |
| South Dakota | Tim Johnson | D | Aye |
| Delaware | Ted Kaufman | D | Aye |
| Massachusetts | John Kerry | D | Aye |
| Minnesota | Amy Klobuchar | D | Aye |
| Wisconsin | Herb Kohl | D | Aye |
| Arizona | Jon Kyl | R | No |
| Louisiana | Mary Landrieu | D | Aye |
| New Jersey | Frank Lautenberg | D | Aye |
| Vermont | Patrick Leahy | D | Aye |
| Florida | George LeMieux | R | No |
| Michigan | Carl Levin | D | Aye |
| Connecticut | Joe Lieberman | I | Aye |
| Arkansas | Blanche Lincoln | D | Aye |
| Indiana | Richard Lugar | R | Aye |
| Arizona | John McCain | R | No |
| Missouri | Claire McCaskill | D | Aye |
| Kentucky | Mitch McConnell | R | No |
| New Jersey | Bob Menendez | D | Aye |
| Oregon | Jeff Merkley | D | Aye |
| Maryland | Barbara Mikulski | D | Aye |
| Alaska | Lisa Murkowski | R | No |
| Washington | Patty Murray | D | Aye |
| Nebraska | Ben Nelson | D | No |
| Florida | Bill Nelson | D | Aye |
| Arkansas | Mark Pryor | D | Aye |
| Rhode Island | Jack Reed | D | Aye |
| Nevada | Harry Reid | D | Aye |
| Idaho | Jim Risch | R | No |
| Kansas | Pat Roberts | R | No |
| West Virginia | Jay Rockefeller | D | Aye |
| Vermont | Bernie Sanders | I | Aye |
| New York | Chuck Schumer | D | Aye |
| Alabama | Jeff Sessions | R | No |
| New Hampshire | Jeanne Shaheen | D | Aye |
| Alabama | Richard Shelby | R | No |
| Maine | Olympia Snowe | R | Aye |
| Pennsylvania | Arlen Specter | D | Aye |
| Michigan | Debbie Stabenow | D | Aye |
| Montana | Jon Tester | D | Aye |
| South Dakota | John Thune | R | No |
| Colorado | Mark Udall | D | Aye |
| New Mexico | Tom Udall | D | Aye |
| Louisiana | David Vitter | R | No |
| Ohio | George Voinovich | R | No |
| Virginia | Mark Warner | D | Aye |
| Virginia | Jim Webb | D | Aye |
| Rhode Island | Sheldon Whitehouse | D | Aye |
| Mississippi | Roger Wicker | R | No |
| Oregon | Ron Wyden | D | Aye |
(source:wikipedia)
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