WASHINGTON-When the Supreme Court sits down for its next session in October, it will have a newly robed member: Elena Kagan. The Senate confirmed Kagan Thursday afternoon 63-37, with the support of five Republicans: Olympia Snowe and Susan Collins of Maine, Lindsey Graham of South Carolina, Judd Gregg of New Hampshire, and Dick Lugar of Indiana. Sen. Ben Nelson of Nebraska was the lone Democrat to oppose her, citing her "lack of a judicial record."
Kagan, 50, is likely to sit on the highest court in the land for decades, but blockbuster cases are looming in her immediate future. On Thursday supporters of Proposition 8, the state constitutional amendment that banned gay marriage in California, appealed a federal judge's decision that overturned the measure to the 9th U.S. Circuit Court of Appeals. The liberal-leaning 9th Circuit is likely to support the federal judge's ruling, meaning that Proposition 8 will likely be appealed to the next level: the U.S. Supreme Court.
The high court also likely will hear challenges on the constitutionality of healthcare reform, with suits from state attorneys general already making their way through the lower courts.
Already on the court's upcoming docket is an appeal to protect tuition subsidies (essentially school vouchers) in Arizona. The 9th Circuit ruled that the $500 tax credits violated the Establishment Clause of the Constitution, separating church and state. In her confirmation hearings, Kagan did not shed much light on her own position on how such questions should be resolved, acknowledging that such cases would be coming before the court.
But Sen. Ben Cardin, D-Md., did ask her whether students should receive special protection from religious "coercion" under the Establishment Clause. She answered that, according to certain Supreme Court precedent, schools would have to meet the "coercion test," in which the government must not be coercing someone to participate in a religion or belief system. The test, she said, has been more often applied to children; she cited one Supreme Court case where prayer at a public school graduation was considered coercion because the students were children.
"The court's cases essentially see a difference between coercion of adults, thinking that adults can kind of stand up for themselves, and coercion of children, where there's a greater fear of the government's coercive impact," she said.
While Kagan may prove to be strategic as a justice as she was as a political operative in the Clinton White House, she will be the youngest and least experienced on the court. She also does not change the ideological makeup in replacing the "liberal lion" Justice John Paul Stevens.
The Senate made this last vote before entering its summer recess, which should last for several weeks. The confirmation process has attracted little attention from politicians-even Republicans-because of other pressing issues like continuing high unemployment and the oil spill in the Gulf.