Image: Elena Kagan
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Elena Kagan will join two other women on the high court — Ruth Bader Ginsburg and Sonia Sotomayor.
updated 8/5/2010 6:23:13 PM ET 2010-08-05T22:23:13

The Senate confirmed Elena Kagan Thursday as the Supreme Court's 112th justice and the fourth woman in its history, granting a lifetime term to a lawyer and academic with a reputation for brilliance, a dry sense of humor and a liberal bent.

The vote was 63-37 for President Barack Obama's nominee to succeed retired Justice John Paul Stevens.

Five Republicans joined all but one Democrat and the Senate's two independents to support Kagan. In a rarely practiced ritual reserved for the most historic votes, senators sat at their desks and stood to cast their votes with "ayes" and "nays."

Kagan watched on TV in the conference room at the solicitor general's office, with her Justice Department colleagues looking on. She's to be sworn in Saturday afternoon at the court by Chief Justice John Roberts.

Obama, traveling in Chicago, said Kagan will make an outstanding justice who understands that her rulings affect people, and called the addition of another woman to the court a sign of progress for the country. He invited Kagan to the White House Friday for a ceremony marking her confirmation.

The vote, Obama said, was "an affirmation of her character and her temperament; her open-mindedness and evenhandedness; her determination to hear all sides of every story and consider all possible arguments."

Kagan isn't expected to alter the ideological balance of the court, where Stevens was considered a leader of the liberal wing. But the two parties clashed over her nomination and the court itself. Republicans argued that Kagan was a politically motivated activist who would be unable to put aside her opinions and rule impartially. Democrats defended her as a highly qualified trailblazer for women who could bring a note of moderation and real-world experience to a polarized court they said was dominated by just the kind of activists the GOP denounced.

Kagan is the first Supreme Court nominee in nearly 40 years with no experience as a judge, and her swearing-in will mark the first time in history that three women will serve on the nine-member court together.

Her lack of judicial experience was the stated reason for one fence-sitting Republican, Sen. Scott Brown of Massachusetts, to announce his opposition to Kagan's confirmation Thursday, just hours before the vote.

Though calling her "brilliant," Brown — who had been seen as a potential GOP supporter — said she was missing the necessary background to serve as a justice.

"The best umpires, to use the popular analogy, must not only call balls and strikes, but also have spent enough time on the playing field to know the strike zone," Brown said.

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Democrats said they hoped Kagan would act as a counterweight to the conservative majority that's dominated the Supreme Court in recent years.

"I believe she understands that judges and justices must realize how the law affects Americans each and every day. That understanding is fundamental," said Sen. Patrick Leahy, D-Vt., the Judiciary Committee chairman. With her confirmation, he said, "the Supreme Court will better reflect the diversity that made our country great."

Most Republicans portrayed Kagan as a partisan who will use her post to push the Democratic agenda from the bench.

Kagan "is truly a person of the political left — now they call themselves progressives — one who has a history of working to advance the values of the left wing of the Democratic Party, and whose philosophy of judging allows a judge to utilize the power of their office to advance their vision for what America should be," said Sen. Jeff Sessions of Alabama, the top Republican on the Judiciary Committee.

Just one Democrat — centrist Sen. Ben Nelson of Nebraska — crossed party lines to oppose Kagan.

A handful of mostly moderate Republicans broke with their party to back her: Maine Sens. Susan Collins and Olympia Snowe, South Carolina's Sen. Lindsey Graham, retiring Sen. Judd Gregg of New Hampshire, and Indiana Sen. Richard Lugar.

They argued that partisanship should play no role in debates over the Supreme Court and have called Obama's nominee qualified.

Still, it was clear that unlike in past decades — when high court nominees enjoyed the support of large majorities on both sides — party politics was driving the debate and vote on Kagan, much as it did last year when the Senate considered Obama's first pick, Justice Sonia Sotomayor, and former President George W. Bush's two nominees, Chief Justice John Roberts and Justice Samuel Alito.

GOP senators have criticized Kagan for her decision as dean to bar military recruiters from the Harvard Law School career services office because of the prohibition against openly gay soldiers. Republicans spent the last hours of debate accusing her of being hostile to gun rights, and they have also spent considerable time criticizing her stance in favor of abortion rights.

Kagan revealed little about what kind of justice she would be in weeks of private one-on-one meetings with senators and several days of testimony before the Judiciary panel, despite having famously penned a law review article blasting Supreme Court nominees for obfuscating before the Senate. She dodged questions about her personal beliefs on a host of hot-button issues and declined repeatedly to "grade" Supreme Court rulings.

But her public appearances and documents unearthed from her time serving as a Clinton administration lawyer and domestic policy aide painted a portrait of the kind of personality she'll bring to the bench. She came across as a sharp intellect who enjoys the thrust and parry of legal debate, someone who's willing to throw elbows to make her opinions heard but nonetheless eager to facilitate consensus. She also showed flashes of a playful, dry wit senators said would serve her well in sometimes tense court deliberations.

Kagan will be no stranger to the eight justices she is to join on the Supreme Court, having served as the government's top lawyer arguing cases before them in a post often referred to as the "10th justice." She's already friendly with a number of them, not least Antonin Scalia, the conservative justice who is her ideological opposite.

Kagan's nomination to a seat on the nation's highest court drew relatively little notice this summer, with the public and elected officials preoccupied by bad economic news and the Gulf oil spill, and many lawmakers nervously eyeing the November midterm congressional elections.

But senators used the debate to press their dueling visions of the Supreme Court.

When sworn in, Kagan will join two other women on the court, Ruth Bader Ginsburg and Sotomayor, who was Obama's first nominee. Sandra Day O'Connor was the first woman appointed to the court, by President Ronald Reagan. She served from September 1981 to January 2006.

Not since 1972 has the Senate confirmed a Supreme Court nominee without experience as a judge. That year, both William Rehnquist and Lewis Powell Jr. joined the court.

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

Photos: Elena Kagan, Supreme Court-bound?

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  1. In this image released by the White House, shows 9-year-old Elena Kagan, left, with her family on Jan. 24, 1970. (AP) Back to slideshow navigation
  2. Elena Kagan selected a quotation from former Supreme Court Justice Felix Frankfurter to accompany this photo from 1977 in her Hunter College high school year book: "Government is itself an art, one of the subtlest of arts." (Ellen Purtell / Hunter High School via AP) Back to slideshow navigation
  3. In this undated photo released by Hunter College High school, Kagan, second from left in the front row, poses with members of the student government in the school's 1977 yearbook. Kagan, wearing a robe and holding a gavel, was the student council president. (Ellen Purtell / /Hunter High School via AP) Back to slideshow navigation
  4. Elena Kagan, standing, served as editorial chairman for The Daily Princetonian while she studied history as an undergraduate at the university. The New York City native graduated in 1981. (Courtesy of The Daily Princetonian) Back to slideshow navigation
  5. Kagan graduated in 1981 summa cum laude from Princeton with a degree in history. (Courtesy of Princeton University) Back to slideshow navigation
  6. Kagan joined the University of Chicago Law School faculty as an assistant professor in 1991 and served as a tenured professor from 1995 to 1997. (AP) Back to slideshow navigation
  7. In this 1992 photo provided by the University of Chicago Law School, Elena Kagan, left, then an assistant professor at the university, participates in the law school's faculty-student trivia contest with Daniel Shaviro, former law school professor, now with New York University. (AP) Back to slideshow navigation
  8. In this 1993 photo provided by the University of Chicago Law School, assistant professor Elena Kagan plays in a softball game. (AP) Back to slideshow navigation
  9. In 1999, Kagan, who earned her law degree at Harvard University, returned to the campus as a member of the faculty. This photo provided by the university shows Kagan in 2003 when she was the law school dean. (Harvard University via AP) Back to slideshow navigation
  10. Former U.S. Supreme Court Justice Sandra Day O'Connor talks to Solicitor General Kagan during the forum "Striking the Balance: Fair and Independent Courts in a New Era" at Georgetown University Law Center May 20, 2009. (Chip Somodevilla / Getty Images) Back to slideshow navigation
  11. U.S. Solicitor General Kagan addresses the forum "Striking the Balance: Fair and Independent Courts in a New Era" at Georgetown University Law Center May 20, 2009 in Washington, DC. (Chip Somodevilla / Getty Images) Back to slideshow navigation
  12. When Supreme Court Justice Stevens announced his retirement, Kagan's name was quickly floated as a potential replacement. A year earlier, the Senate confirmed her as Solicitor General by a vote of 61-31, with only seven Republicans supporting her. (Jay Mallin / Zuma Press) Back to slideshow navigation
  13. President Barack Obama meets with Solicitor General Elena Kagan in the Oval Office April 30, 2010. (Pete Souza / White House handout) Back to slideshow navigation
  14. Vice President Joe Biden, left, and President Barack Obama, right, applaud as Solicitor General Elena Kagan accepts her nomination to the Supreme Court at the White House in Washington on Monday May 10, 2010. (Jim Watson / AFP - Getty Images) Back to slideshow navigation
  15. Supreme Court nominee Elena Kagan, rides the Senate subway during a day of meetings on Capitol Hill in Washington, D.C., on May 12. (Harry Hamburg / AP) Back to slideshow navigation
  16. Senate Majority Leader Harry Reid meets with Elena Kagan on Capitol Hill on May 12. (Alex Brandon / AP) Back to slideshow navigation
  17. Elena Kagan talks with Sen. Arlen Specter in his office on Capitol Hill on May 13. (Alex Brandon / AP) Back to slideshow navigation
  18. Elena Kagan sits with Sen. Lindsey Graham on May 18 as part of her visits with senators who will vote on her confirmation to replace retiring Justice John Paul Stevens on the Supreme Court. (Mark Wilson / Getty Images) Back to slideshow navigation
  19. Supreme Court nominee Elena Kagan listens to opening statements by members of the Senate Judiciary Committee on the first day of her confirmation hearings on Capitol Hill June 28, in Washington, D.C. Kagan is President Barack Obama's second Supreme Court nominee since taking office. (Pablo Martinez Monsivias / Pool via Getty Images) Back to slideshow navigation
  20. Elena Kagan is sworn in as the Supreme Court's newest member as Chief Justice John Roberts, right, administers the judicial oath, at the Supreme Court Building in Washington, D.C., on Saturday, Aug. 7. The Bible is held by Jeffrey Minear, center, counselor to the chief justice. Kagan, 50, who replaces retired Justice John Paul Stevens, becomes the fourth woman to sit on the high court, and is the first Supreme Court justice in nearly four decades with no previous experience as a judge. (J. Scott Applewhite / AP) Back to slideshow navigation
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Video: Kagan to be sworn in as high court Justice

  1. Closed captioning of: Kagan to be sworn in as high court Justice

    >>> today president obama welcomes elena kagan to the white house one day after kagan was confirmed as a supreme court justice . nbc's justice correspondent pete williams has more on that. pete, good morning.

    >> reporter: carl, she is not quite a supreme court justice yet but she will be saturday when she's officially sworn in. attorney general eric holder and other top justice department officials congratulated elena kagan after thursday's senate vote as she prepared to leave the place where she's been solicitor general, the government's top courtroom lawyer. she was confirmed on a vote of 63-37, a mostly party line vote. five republicans did cross over to support her. she'll become the third woman on the current supreme court joining ruth bader ginsburg and sonia sotomayor . president obama described that development this way.

    >> a sign of progress that i relish not just as a father who wants limitless possibilities for my two daughters but as an american proud that our supreme court will be more inclusive, more representative and more reflective of us as a people than ever before.

    >> reporter: elena kagan will be the court's youngest justice at age 50. she succeeds john paul stevens who retired in june at age 90.

    >> pete, thanks for that.

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