Elena Kagan Supreme Court nomination
On May 10, 2010, President 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 confirmed by a 63—37 vote of the United States Senate on August 5, 2010. When nominated, Kagan was Solicitor General of the United States, a position to which Obama had appointed her in March 2009. Kagan was the first Supreme Court nominee since Sandra Day O'Connor in 1981 to not be a sitting circuit court judge and the most recent such nominee as of 2020. She was the first Supreme Court nominee since William Rehnquist and Lewis F. Powell Jr. in 1971[note 1] to not be a sitting judge on any court.
Nomination
Potential candidates
On April 9, 2010, John Paul Stevens announced that he would retire from the Supreme Court on June 29, at the start of Court's summer 2010 recess. He had served as an associate justice for 34 years.[1] Those considered front-runners for the nomination by press reports, in addition to Elena Kagan, were: Diane Wood and Merrick Garland.[2] Kagan had also been a finalist for the Court vacancy one year earlier, when Justice Sonia Sotomayor was selected to succeed the retiring David Souter.[3]
Announcement
President Barack Obama announced the nomination of Elena Kagan to the Supreme Court on May 10, 2010.[3] He praised Kagan as a "consensus builder", and said that she "is widely regarded as one of the nation's foremost legal minds".[4] The nomination was formally received by the Senate that same day, and was subsequently referred to the Judiciary Committee.[5]
Response to the nomination
In the Senate, Kagan's nomination was received positively by most Democrats. Judiciary Committee chairman Patrick Leahy applauded Kagan's experience and qualifications. In doing so, he called attention to her work in academia and with the federal government – noting that both were outside the so-called "judicial monastery" from which most contemporary justices have come. The last justices to join the Court without any prior judicial experience had been Lewis Powell and William Rehnquist, both appointed by President Richard Nixon in 1972.[6]
Republicans were quick to express criticism, particularly over her handling of military recruiters during her time as Dean of Harvard Law School, as well as her work as a law clerk for the late Justice Thurgood Marshall, whom many of them deemed a liberal activist.[7] Even so, minority whip Jon Kyl, who supported Kagan's nominations for solicitor general (a "temporary political appointment") but was reticent to support her associate justice (a "lifetime appointment"),[6] all but ruled out using a filibuster to block a final Senate floor vote on the nomination, telling CBS's Face the Nation, "The filibuster should be relegated to extreme circumstances, and I don't think Elena Kagan represents that."[8] Opposition to Kagan among Senate Republicans was not universal however. A few expressed support for her, including Lindsey Graham, Susan Collins and Richard Lugar.[9]
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.[10]
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.[11] At the same time, the Brady Campaign to Prevent Gun Violence announced its support for Kagan's nomination.[12]
Confirmation hearing
Kagan's Confirmation hearing before the Senate Judiciary Committee began on June 28, 2010.[13] From the 28th through the 30th, Kagan underwent two rounds of questioning by each member of the committee.
Several witnesses were called to give testimony before the Judiciary Committee at the hearings.[14] These witnesses included Kim Askew and William J. Kayatta, Jr. of the American Bar Association.[14] The Democratic members of the committee called witnesses that included:[14]
- Professor Robert C. Clark, Harvard University Distinguished Service Professor, Austin Wakeman Scott Professor of Law, and former Dean, Harvard Law School
- Fernande "Nan" Duffly, Associate Justice, Massachusetts Court of Appeals, on behalf of the National Association of Women Judges
- Greg Garre, Partner, Latham & Watkins, former Solicitor General of the United States
- Jennifer Gibbins, Executive Director, Prince William Soundkeeper
- 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 & Rubber Co.
- 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:[14]
- 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 Guar* 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
After the completion of testimony, Republicans on the Judiciary Committee successfully delayed a vote on forwarding the nomination to the full Senate for one week.[15] On July 20, the committee voted 13–6 to endorse and forward the nomination, with only one Republican, Lindsey Graham, voting in the affirmative.[16]
Full Senate
The Senate confirmed Elena Kagan to be an associate justice of the Supreme Court on August 5, 2010, by a vote of 63–37. All Democrats, except for Ben Nelson, voted for her, as did Independents Joe Lieberman and Bernie Sanders, and five Republicans: Susan Collins, Lindsey Graham, Judd Gregg, Richard Lugar and Olympia Snowe.[17][18]
| Vote to confirm Elana Kagan's nomination as an Associate Justice | ||||
|---|---|---|---|---|
| August 5, 2010 | Party | Total votes | ||
| Democratic | Republican | Independent | ||
| Yea | 56 | 5 | 2 | 63 |
| Nay | 1 | 36 | 0 | 37 |
| Result: Confirmed | ||||
Notes: D = Democratic; R = Republican; Ind = independent; Ind D = Independent Democratic;
R→D = moved from Republican to Democratic caucus on April 29–30, 2009
Kagan's swearing-in ceremony as Associate Justice took place on August 7, 2010, at the White House. Chief Justice John Roberts administered the prescribed constitutional and judicial oaths of office, at which time she became the 112th justice (100th associate justice) of the Supreme Court.[19][20]
See also
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Notes
- Rehnquist and Powell were nominated by Richard Nixon in 1971 to fill two simultaneous vacancies arising from the retirements and immanent deaths of John Marshall Harlan II and Hugo Black. They took their positions on the bench on the same date – January 7, 1972
References
- De Vogue, Ariane (April 9, 2010). "Liberal Justice John Paul Stevens to Retire From Court". ABC News. Retrieved June 20, 2019.
- "Profiles of three possible successors to Justice John Paul Stevens". The Los Angeles Times. April 10, 2010. Retrieved June 20, 2019.
- "Obama chooses Elena Kagan for Supreme Court". CNN. May 12, 2010. Retrieved June 20, 2019.
- "Kagan Likely To Be Pressed On Writings, Experience". NPR. May 10, 2010. Retrieved June 20, 2019.
- McMillion, Barry J.; Rutkus, Denis Steven (July 6, 2018). "Supreme Court Nominations, 1789 to 2017: Actions by the Senate, the Judiciary Committee, and the President" (PDF). CRS Report (RL33225). Washington, D.C.: Congressional Research Service. Retrieved June 17, 2019.
- Dwyer, Devin; Wolf, Z. Byron; Karl, Jonathan (May 10, 2010). "Elena Kagan: Obama Nom Heads to Senate". ABC News. Retrieved June 22, 2019.
- "Kagan Quizzed About Thurgood Marshall's Record". NPR. June 29, 2010.
- Marr, Kendra (May 16, 2010). "Kyl: GOP won't filibuster Kagan". Politico. Retrieved June 1, 2019.
- "Some in GOP backing Kagan". The Boston Globe. June 2, 2010. Archived from the original on October 26, 2012. Retrieved June 1, 2019.
- Goldstein, Amy (2010-06-15). "69 law school deans endorse Kagan in letter to Senate". Washingtonpost.com. Retrieved 2010-07-01.
- James Oliphant, NRA opposes Kagan confirmation, L.A. Times (July 2, 2010).
- Kane, Paul; Goldstein, Amy (2010-07-01). "Kagan expected to be confirmed to Supreme Court with little Republican support". Washington Post. Retrieved 2010-07-12.
- Dann, Carrie (June 28, 2010). "Live-blogging the Kagan hearing". MSNBC. Archived from the original on June 30, 2010. Retrieved June 28, 2010.
- "Kagan hearings witness list released". The Washington Post.
- Crabtree, Susan (July 13, 2010). "Republicans force one-week delay in Judiciary panel's Kagan vote". The Hill. Retrieved June 1, 2019.
- "Judiciary Committee approves Elena Kagan for the Supreme Court, sending nomination to Senate". Fox News. Associated Press. July 20, 2010. Retrieved June 1, 2019.
- Crabtree, Susan; Rushing, J. Taylor (August 6, 2010). "Kagan confirmed to Supreme Court". The Hill. Retrieved June 1, 2019.
- Dwyer, Devin; Jaffe, Jeff (August 5, 2010). "Senate Confirms Elena Kagan to Supreme Court". ABC News. Retrieved June 1, 2019.
- Julie Hirschfeld Davis (August 7, 2010). "Kagan sworn in as Supreme Court justice: She won't be formally installed as a justice until Oct. 1". Associated Press. Retrieved August 7, 2010.
- "Associate Justice Elena Kagan Swearing-in Ceremony". Washington, D.C.: Supreme Court of the United States. Retrieved June 22, 2019.
Further reading
- Bybee, Keith J. (2011). "Will the Real Elena Kagan Please Stand Up? Conflicting Public Images in the Supreme Court Confirmation Process" (PDF). Wake Forest Journal of Law & Policy. 1 (1): 137–156. SSRN 1717006.
- Devins, Neal; Baum, Lawrence (2016). "Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court". William & Mary Law School Research Paper No. 09-276. SSRN 2432111.
External links
- Kagan Faces Confirmation Questioning on Political Leanings, Guns, Military Recruiting, and Abortion - video report by Democracy Now!
- The Nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States: Hearing before the Committee on the Judiciary, United States Senate, One Hundred Eleventh Congress, Second Session, June 28-30 and July 1, 2010. Errata