Image: Elena Kagan
Alex Brandon  /  AP
A confirmation vote is all but assured for Elena Kagan as the Senate begins debate on making her the fourth female justice.
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updated 8/3/2010 6:10:05 PM ET 2010-08-03T22:10:05

Democrats and Republicans presented dueling portraits Tuesday of Elena Kagan and the Supreme Court she's seeking to join at the start of a politically charged debate over her fitness to be a justice, making what amounted to closing arguments before a near-certain confirmation vote by week's end.

Democrats praised President Barack Obama's nominee as a highly qualified legal scholar who would add a sorely needed note of fairness and common sense to a court they described as dominated by a conservative majority run amok.

"She'll base her approach to deciding cases on the law and the Constitution, not on politics, not on an ideological agenda," said Sen. Patrick Leahy, D-Vt., the chairman of the Judiciary Committee. He said today's Supreme Court is populated by "activist conservative members" who substitute their own judgment for lawmakers'.

Republicans countered that Kagan is an inexperienced, disingenuous nominee who would abuse her post by bending the law to suit a liberal agenda.

"I don't think it's a secret. I think this is pretty well known that this is not a judge committed to restraint, (or) objectivity," said Sen. Jeff Sessions of Alabama, the top Judiciary Committee Republican. Her past actions and testimony indicate she'd be "an activist, liberal, progressive, politically minded judge who will not be happy simply to decide cases but will seek to advance her causes under the guise of judging."

Even her harshest critics acknowledged there was no doubt about the debate's outcome and the vote expected Thursday.

"I hope I'm wrong about soon-to-be Justice Kagan," Sen. Orrin Hatch, R-Utah, said.

In line to become the fourth woman ever to sit on the court, Kagan is not expected to alter its ideological balance in succeeding retired Justice John Paul Stevens — himself a leader of the Supreme Court's liberal wing.

Even as senators spoke passionately on the Senate floor about granting Kagan a lifetime position on the nation's highest court, the Supreme Court debate was drawing remarkably little attention on Capitol Hill, where lawmakers preparing for midterm congressional elections are preoccupied by bad economic news and the aftermath of the Gulf oil spill.

Kagan earned barely a mention at Democrats' and Republicans' news conferences Tuesday — and then only as the last on a laundry list of things left to do before senators depart for a monthlong vacation.

Despite the partisan divide, Kagan was on track for easy confirmation with the support of nearly all Democrats and a handful of GOP senators.

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Sen. Lindsey Graham, R-S.C., who was the first of five Republicans to announce he'd break with his party to back Kagan, said he was voting "yes" because she's qualified for the job, and senators should respect presidents' prerogatives to choose like-minded Supreme Court nominees — regardless of party.

"I don't vote for her expecting her to do anything other than what she thinks is right, ruling with the court most of the time in a way that a Republican nominee would not have ruled," Graham said. "She is not someone I would have chosen, but it's not my job to choose. It's President's Obama's job and he earned that right."

Graham has been under fire from conservative groups for supporting Kagan, as have been the other GOP senators who have announced plans to do so: Maine Sens. Susan Collins and Olympia Snowe, retiring Sen. Judd Gregg of New Hampshire and Indiana Sen. Richard Lugar.

For his part, Sessions implored Democrats to take a second look at Obama's nominee, clearly hoping to persuade those from conservative-leaning states to vote "no."

"We're not lemmings here. We have a constitutional duty to make an independent decision," Sessions said.

Sen. Ben Nelson of Nebraska is the only Democrat so far to say he plans to oppose Kagan.

Republicans outlined grave concerns about Kagan's fitness for the bench, arguing that her record as a Clinton administration aide and in legal academia suggests she puts her political views first and the law second.

GOP critics were particularly harsh in their criticism of Kagan's decision as dean of Harvard Law School to bar military recruiters from the campus career services office because of the policy against openly gay soldiers. They also criticized her for failing as solicitor general to contest a legal challenge to the "don't ask, don't tell" policy on gays in the military.

"What we do know is that Ms. Kagan has a history of ignoring the law when it conflicts with the gay-rights agenda," charged Sen. Jon Kyl, R-Ariz. He said he also was concerned about Kagan's "leftist ideology" and its potential to influence her rulings.

Kagan has answered the recruitment charges by saying she was merely trying to comply with the university's nondiscrimination policy. She told senators she didn't pursue the "don't ask, don't tell" case because she had made a strategic decision to wait before taking action.

Leahy launched a pre-emptive defense of Kagan, calling her views "mainstream," and saying she has "demonstrated her respect for the rule of law, her appreciation for the separation of powers and her understanding of the meaning of our Constitution."

Some of Kagan's opponents said they weren't comfortable voting for her because the nominee, who wrote a law review article in the 1990s bashing would-be justices for obfuscating at their confirmation hearings, had managed to reveal so little about what kind of justice she would be.

"Because she has gone out of her way, quite frankly, not to answer questions, I have no idea what she'll do on the bench, or whether she will be able to suppress her own values to apply the law," said Sen. George Voinovich of Ohio, one of several Republicans who broke with his party last year to back Obama's first high court nominee, Justice Sonia Sotomayor. Voinovich said he could not do the same this time.

"The fact is we really don't know much about what her views are," he said.

Copyright 2010 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

Video: Kagan nears confirmation vote

  1. Closed captioning of: Kagan nears confirmation vote

    >>> to the senate. the senator dianne feinstein . a final vote is expected by the end of this week. while kagan is expected widely to be confirmed, it is still unclear how many republicans will support her nomination. ken strickland is the senate producer for nbc news. keeping a close eye on this. what can we look for, ken? who do we expect will back her and who is going to hold out?

    >> right now it's pretty much all done but the voting. we know that essentially she will be confirmed. we have to take some unforeseen event between now and the end of the week to keep that from happening. the way it divides up, most republicans are against her, most democrats are for her. but to your original question, how many republicans will support her? right now, we know at least five fifive have already said they will support her final confirmation. those five are, lindsey graham who is on the senate judiciary commission and we also have the senators from maine susan collins and olympia snowe , judd gregg says he will support her and dick lugar of indiana. those are the five. now, there still could be one or two more and one question mark is still on scott brown . the republican from massachusetts. possibly the most popular republican in washington. he is actually elena kagan 's home state senator. he introduced her at her conifer confirmation hearings. we don't know how that will play out yet. that will be something to watch. ironically, one democrat who said he will not support her. that's ben nelson of nebraska. where is it that a member of the president's party does not support his nominee for the supreme court . it will all get wrapped up some time later this week. the debate is ongoing later today .

    >> ken strickland at the senate for us today there at the capital. thank you so

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