WASHINGTON-Supreme Court nominee Elena Kagan is now one vote away from confirmation. The Senate Judiciary Committee voted 13-6 Tuesday to send her nomination to full Senate, where she could be confirmed as early as next week. Only one Republican, Sen. Lindsey Graham of South Carolina, cast a vote in favor of moving her forward in the confirmation process.
During the committee's hearings, Graham had sassy back-and-forths with Kagan. ("Elections have consequences. Do you agree with that?" he asked. "It would be hard to disagree that elections have consequences," she returned with a smile.) Graham said he was comfortable with the idea that Republican presidents nominate conservative justices and Democratic presidents nominate liberals.
"What did I expect from President Obama? About what I'm getting," Graham said on the first day of hearings. Kagan acknowledged to him that politically, she is indeed "progressive." She has sided with Graham on issues related to terrorism, saying we are indeed at war, but there will not be a definable end to hostilities, complicating how to handle enemy combatants.
Graham said his support "doesn't mean I'm pro-choice. I'm very pro-life. . . . It's because I believe elections have consequences," he said. "I've got a lot of opportunity to disagree with [the president] . . . but it should be the exception, not the rule."
Republicans reiterated their concerns with Kagan-like her stonewalling on meaningful questions and her lack of experience as a judge. Senate Judiciary Committee chair Patrick Leahy, D-Vt., said he wished that she had been confirmed to be a judge on the D.C. Circuit Court of Appeals, when President Clinton nominated her to that position. "Then she would have had that experience," he said.
Sen. Arlen Specter, D-Pa., once the top Republican on the committee, voted for Kagan, but he said with "grave concerns" because of her "failure to answer questions that I think were important to answer." Her hearing was a "pretty performance," he added.
While few senators mentioned it, in the eyes of pro-lifers, the most scandalous incident in her past is when as a Clinton White House adviser she doctored a statement from the American College of Obstetricians and Gynecologists (ACOG) on partial-birth abortion. When the group drafted a statement that there would never be a circumstance where partial-birth abortion would be necessary to save the life or preserve the health of the woman, Kagan intervened, saying the statement would be a "disaster." She provided her own version, which the group adopted, saying partial-birth abortion could be "the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of a woman, and a doctor should be allowed to make this determination."
William Saletan, a columnist at Slate, wrote about the matter: "If a Bush aide had done something like this during the stem-cell debate, progressive blogs would have screamed bloody murder." Saletan argued that courts rely too heavily on politically influenced medical groups. Sen. Orrin Hatch, R-Utah, said in the hearings he was "stunned by what seems to be a real politicization of science."