Senate poised to confirm Kagan this week
By Paul Kane
The Senate, tied in knots on almost every other legislative issue, is now on a glide path to confirming Elena Kagan as the fourth woman ever to serve as a Supreme Court justice.
Unable to find consensus on a series of domestic policy issues -- including help for small businesses, financial aid to cash-strapped states and energy legislation -- Senate Majority Leader Harry M. Reid (D-Nev.) moved the chamber into several days of debate for Kagan's nomination Tuesday morning.
(Full coverage of Kagan's nomination)
After coasting through her confirmation hearings in late June and winning approval from the Judiciary Committee two weeks ago, the solicitor general could have been confirmed many days ago.
Instead, Reid's leadership team decided that, whatever else happened in the last weeks of the summer legislative session, they wanted to finish on a high note. So, they set the schedule for Kagan's confirmation to be the last issue debated and voted on, likely Thursday afternoon or evening. The Senate will then recess for a nearly six-week break until mid-September.
"Perhaps we can draw inspiration from Ms. Kagan herself. In her confirmation hearing last year for the position she currently holds - as our nation's Solicitor General, that is, the government's lawyer in cases that come before the Supreme Court - Ms. Kagan testified that one of the attributes she would bring to the job was an 'understanding of how to separate the truly important from the spurious.' In the final days of this process, I suggest we keep those words in mind," Reid said Tuesday morning.
With five GOP senators already supporting her nomination, Republicans are not planning to force a filibuster vote on Kagan. One Democrat, conservative Ben Nelson (D-Neb.), has announced his intention of opposing her. She is likely to get from 63 to 65 votes approving her confirmation, which is fewer than the 68 given to Justice Sonia Sotomayor in August 2009 but more than the 58 votes secured by Justice Samuel Alito in 2006.
Barring a last-minute flare-up, the only remaining drama is over the vote of Sen. Scott Brown (R-Mass.), whose Jan. 19 special election victory brought chants of "41, 41" because he gave Republicans the mythical 41st vote that could filibuster President Obama's agenda should the entire GOP conference hold together. Instead, Brown has shown a maverick streak in supporting some of Obama's domestic agenda but also at times forcefully opposing measures such as health-care reform. Because Kagan was dean of Harvard Law, Brown introduced Kagan to the Judiciary Committee, along with Sen. John Kerry (D-Mass.), at her confirmation hearings.
Republicans expect to use the next three days to focus on the areas that they criticized Kagan for during those hearings, particularly accusations that she forbid the military from recruiting at Harvard Law and that she has never served as a judge, coming to this position with a more political background than some justices.
At 50, Kagan is poised to serve on the Supreme Court for decades to come, should she remain as healthy as retired Justice John Paul Stevens, the justice who announced his retirement at the age of 89.
"If this young nominee -- Elena Kagan -- were to serve the age of the individual she is now replacing, or would seek to replace, she would serve 38 years on the Supreme Court," Sen. Jeff Sessions (R-Ala.), the senior Republican on the Judiciary Committee, said Tuesday. "Well, I'm not able to support Elena Kagan for this office. I believe she does not have the gifts and the qualities of mind or temperament that one must have to be a justice."
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