The U.S. Senate confirmed the appointment of Solicitor General Elena Kagan to the U.S. Supreme Court Aug. 5—but not without complaints from nearly every Republican opposing her nomination about her actions concerning "Don't Ask, Don't Tell" ( DADT ) and the Defense of Marriage Act ( DOMA ) .
The vote was 63-37, with only five Republicans voting for Kagan and one Democrat voting against.
The Senate's newest Republican member, Scott Brown of Massachusetts, voted against Kagan.
Partisan rancor continued to dominate the proceedings throughout the three days of debate and floor vote, including emotional rants about the merits of the federal law banning openly gay individuals from the military. Moments after the Senate voted for Kagan, the Senate launched into a debate over whether the upcoming defense authorization bill should include a measure seeking to repeal DADT.
Sen. Jeff Sessions, R-Ala., took to the floor numerous times over the two days of the debate on the Kagan nomination, repeating the same arguments over and over again. He said he believed Kagan defied federal laws regarding restrictions on the civil rights of gays and that, as solicitor general, she failed to defend DADT and DOMA.
But by the evening of Aug. 4, he had a new argument: Kagan would become justice and be able to vote on the Proposition 8 case. A federal judge ruled Aug. 4 that the California ban on same-sex marriage was unconstitutional.
Sessions said the Judge Vaughn Walker "just wiped out Proposition 8 that was passed by a majority of people in California…"
"This judge struck down Proposition 8 and, obviously, at some point this will get to the Supreme Court," said Sessions. "The nominee [ has ] already demonstrated at Harvard that her views about Don't Ask, Don't Tell and similar social marriage, sexual relation matters involve such strong feelings on her part that she's not been able to follow the law. I'm worried about that."
Sessions went on at some length, criticizing Walker's decision as being "replete" with "judicial activism."
"When you empower a judge to do these kinds of things, you've given them control over you," said Sessions. "You've given them the power to re-define marriage, when the people of the state don't want to. And you have no recourse—they have a lifetime appointment."
Sen. John McCain, R-Ariz., discussed his opposition to Kagan's nomination, and staged a colloquy with Sessions in order to mock a statement by Kagan, during her confirmation, "I revere the military."
McCain took particular pains to dramatize the recruitment controversy, painting a picture of a military officer, perhaps one just back from the war in Iraq, "wandering" the halls of Harvard alone and "hoping someone would stop" him and ask about opportunities to serve in the military. McCain said he would oppose Kagan's nomination "precisely for this reason." He and several other senators referred to Kagan's treatment of military recruiters as amounting to a "separate but equal" accommodation.
Sen. Sam Brownback, R-Kan., referred to Kagan's efforts around military recruiters at Harvard Law School as a "scandal," in which she "defied the law."
Sen. Kay Bailey Hutchison, R-Texas, said Kagan "hasn't disavowed judicial activism, which makes me think that its a guiding principle in her thinking." She said it was clear that Kagan's "personal views were instructing her professional decisions in order to promote a social agenda."
Sen. Tom Coburn, R-Okla., raised his voice in considerable emotion to suggest Kagan doesn't embrace the concepts of "life, liberty, and the pursuit of happiness, and that her appointment would, essentially, destroy the nation.
"Her wisdom and her vision is very different from our founders, our constitution, and our natural rights," said Coburn. "This will be a huge mistake for this country."
Kagan's appointment will make her only the fourth woman in history to serve on the nation's highest court. She will also bring to three the number of women serving on the nine-member bench—the largest number of women members in history.
Sen. Barbara Boxer, D-Calif., spoke in support of Kagan's nomination, but mentioned nothing about the controversies surrounding DADT or DOMA.
Kagan, 50, was sworn in as the newest U.S. Supreme Court justice Aug. 7.
According to the Los Angeles Times, Kagan is now the 112th U.S. Supreme Court justice—and its fourth female judge ever. Now, three of the justices on the court ( Kagan, Ruth Bader Ginsburg and Sonia Sotomayor ) are women.
Chief Justice John Roberts administered the oath of office. Afterwards, he said to Kagan, "We look forward to serving with you in our common calling."
The U.S. Senate approved Kagan 63-37. She will be formally installed Oct. 1; the justices start their next term Oct. 4.
©2010 Keen News Service
—Contributing: Andrew Davis
