Senate begins debate over Supreme Court nominee Kagan

Senators began sparring Tuesday over Elena Kagan’s qualifications to be the next justice on the Supreme Court, but with her confirmation virtually assured, the debate largely served to highlight the rancorous divide between Democrats and Republicans in advance of this year’s congressional elections.

With a floor vote expected this week, Kagan appears set to receive fewer yes votes than Justice Sonia Sotomayor did a year ago.

Kagan, 50, was nominated by President Obama in May to replace retired Justice John Paul Stevens on the high court. As U.S. solicitor general, Kagan represents the government before the Supreme Court, but her career has largely been spent outside the courtroom. She was a lawyer and domestic policy advisor in the Clinton White House and for almost six years headed the faculty at Harvard Law School.

Since she was chosen, Republicans have cast Kagan as an inexperienced, progressive political operative who would work to preserve the president’s policy agenda once on the high court rather than serve as an objective jurist.

“She is young, but her philosophy is not,” said Sen. Jeff Sessions of Alabama, the top Republican on the Judiciary Committee, warning that Kagan could serve on the court for more than 35 years. “It is old, bankrupt judicial activism — a philosophy the American people correctly reject.”

Her supporters painted Kagan as a brilliant legal mind and a fair-minded moderate who would build consensus at the center of the court.

Kagan “will do her best to consider every case impartially, modestly, with commitment to principle and in accordance with law,” said Democratic Sen. Patrick J. Leahy of Vermont, chairman of the Judiciary Committee.

Leahy spent much of his time on the floor Tuesday decrying Republican threats to repeal the massive healthcare overhaul passed this year should the GOP regain power in Congress, and arguing that the Supreme Court under the leadership of Chief Justice John G. Roberts Jr. is committed to rolling back social progress.

“This radical conservative agenda is a threat,” Leahy said.

Republicans such as Sen. John Cornyn of Texas and Orrin G. Hatch of Utah shot back, saying that Kagan favors an unrestrained federal government and suggesting she would vote to deny a constitutional challenge to the new healthcare system.

“In her hearing, Ms. Kagan refused to acknowledge any real limits on the federal government’s power,” Hatch said.

Several Democratic female senators took to the floor to defend Kagan, with Sen. Amy Klobuchar of Minnesota criticizing Sessions for saying earlier in the day that Kagan “does not have the gifts and qualities of mind or temperament one must have to be a justice.”

Klobuchar called Sessions’ remarks “simply ridiculous.” If Kagan is confirmed, the court would have three women, the most in history.

At least five Republicans have indicated they will support her, enough to ward off a filibuster. One Democrat, Sen. Ben Nelson of Nebraska, has expressed his opposition to Kagan’s confirmation, but said he would not back any attempt to block the vote.

But Sen. George V. Voinovich (R- Ohio), who voted for Sotomayor last year, dealt Democrats a blow when he cited Kagan’s lack of judicial experience and said he would oppose her confirmation. “I have no idea what she’ll do on the bench,” Voinovich said. “We really don’t know what her views are.”

The five Republicans who have said they will vote for Kagan are Susan Collins and Olympia J. Snowe of Maine, Lindsey Graham of South Carolina, Judd Gregg of New Hampshire and Richard G. Lugar of Indiana. One closely watched GOP senator will be Scott Brown, recently elected from Massachusetts. Brown helped introduce Kagan at her hearing before the Judiciary Committee.

Republican aides pointed to Nelson’s defection as evidence that their concerns over Kagan were having an effect. In that vein, another senator whose vote will be noted is Democratic Sen. Blanche Lincoln of Arkansas, who is locked in a difficult reelection fight.