WASHINGTON (BP)–The U.S. Senate sent Elena Kagan to the Supreme Court Thursday with a 63-37 confirmation vote.
Kagan, who has served as President Obama’s solicitor general, becomes the fourth female justice in the high court’s history. She joins Ruth Bader Ginsburg and Sonia Sotomayor to give the court for the first time three female justices simultaneously.
The confirmation of Kagan, who was opposed by social conservatives on the basis of a record that includes support for abortion and the homosexual agenda, gives Obama two successful nominations, both women, to the Supreme Court in barely 18 months as president. Sotomayor, 56, was confirmed last year.
Kagan, 50, replaces John Paul Stevens, who retired in June at the age of 90, and she is expected to follow in his footsteps ideologically. If that turns out to be true, Sotomayor and Kagan will not mark a dramatic shift in the balance of the court. The justices they replaced — David Souter and Stevens — were longtime members of the court’s liberal bloc.
The vote was no surprise, though it was still discouraging to opponents of Kagan’s elevation to the high court.
“I’m disappointed an elderly liberal has been replaced by a younger liberal,” said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission. “I don’t think most Americans share Kagan’s judicial philosophy. But Barack Obama was elected president, and he has nominated someone who shares his judicial philosophy.
“People should remember that when they vote,” Land told Baptist Press. “Elections have consequences, long-term consequences.”
Tony Perkins, president of the Family Research Council, said Kagan “will bring a radical judicial philosophy and a history of sharp-edged political maneuvering to the nation’s highest legal bench.”
“Her confirmation is especially troubling in light of yesterday’s ruling by a San Francisco federal judge striking down the historical definition of marriage,” he said. “She has shown repeatedly that she will do exactly what she says a judge should not — creatively reinterpret the written text of the Constitution according to her own convictions.”
All but one Democratic senator — Ben Nelson of Nebraska — voted for Kagan’s confirmation. The five Republican senators who voted to confirm were Susan Collins and Olympia Snowe, both of Maine; Lindsey Graham of South Carolina; Judd Gregg of New Hampshire, and Richard Lugar of Indiana.
Kagan’s nomination did not prove popular with the American public. In a mid-July poll, 44 percent of Americans said they favored her confirmation, while 34 were opposed and 22 percent had no opinion, according to Gallup. She became “the first successful nominee in recent years whose nomination was backed by less than a majority of Americans” in its final survey before a vote, Gallup reported.
In the weeks leading to the Senate’s decision, some Republican senators — as well as Land and other pro-life, pro-family leaders outside the chamber — pointed to her positions on some contentious social issues to explain their opposition. Among them:
— Kagan lobbied against a legislative ban on partial-birth abortion while she was an adviser to President Clinton in the 1990s.
She encouraged Clinton to support what pro-lifers described as a “phony ban” on the heinous practice of partial-birth abortion instead of the congressionally approved prohibition he vetoed. That legislation, which eventually became law under President Bush, outlawed a procedure performed on an almost totally delivered baby typically in at least the fifth month of a pregnancy.
Americans United for Life and other pro-lifers also pointed to evidence Kagan successfully lobbied the American College of Obstetricians and Gynecologists (ACOG) and the American Medical Association to change their positions on partial-birth abortion in ways that were favorable to the Clinton administration’s efforts to defeat the proposed ban on the procedure.
Former Surgeon General C. Everett Koop wrote an open letter in July urging senators to “reject the politicization of medical science” and vote against Kagan’s nomination. She “manipulated the medical policy statement” of ACOG in 1997 for political advantage, Koop said. That concession in wording she won from ACOG “made its way into American jurisprudence and misled federal courts for the next decade,” he wrote.
— She kept military recruiters off campus while she was dean at the Harvard School of Law because of her opposition to the “Don’t Ask, Don’t Tell” policy barring open homosexuals from serving in the armed services. She was the law school dean from 2003 to 2009.
— She provided weak support as solicitor general for the 1996 Defense of Marriage Act, which defines marriage in federal law as being between one man and one woman, advocates for the law said.
— She criticized a federal law barring government funds for clinics that promote abortion as a method of family planning. She also supported the view that cloning of embryos for research is ethical.
The Judiciary Committee forwarded Kagan’s nomination to the full Senate in a 13-6 vote July 20.
On the morning of the Judiciary Committee’s vote, a letter from Land was delivered to each of the 19 committee members’ offices urging a vote against the nominee. She failed to clear up concerns he had prior to her hearing before the committee, Land said.
Kagan will sit on the bench with the other eight justices when the court begins its next term in October.
Tom Strode is Washington bureau chief for Baptist Press. See how your senators voted at http://bit.ly/9SiuA7.