The outcome was never in doubt. But the narrowness of the 63–37 margin by which the Senate confirmed Elena Kagan as Supreme Court’s 112th justice this afternoon would stun a Rip Van Winkle who had slept through the rising partisan rancor that has poisoned judicial confirmations at all levels in recent years.
The vote in 1993 to confirm Justice Ruth Bader Ginsburg—who had a considerably more liberal-activist background than Kagan—was 96 to 3. The votes to confirm Justice Stephen Breyer in 1994, Chief Justice John Roberts in 2005, and Justice Sonia Sotomayor last year were 87–9, 78–22, and 68–31, respectively. (With the 50-year-old Kagan joining Ginsburg and Sotomayor, there will be three women on the court for the first time ever.)
Of the five new justices to arrive between the stormy 52–48 confirmation of Clarence Thomas in 1991 and that of Kagan, only Bush nominee Samuel Alito had a smaller margin than hers. That was 58–42, in 2006. Only four Democrats supported Alito, and at least one of those has expressed regret.
Democrats accuse the 36 Republican Senators who voted no on Kagan (as did Democrat Ben Nelson of Nebraska) of simple obstructionism, for opposing a well-qualified, relatively moderate nominee.
Indeed, many experts predict that Kagan may move the court’s ideological balance marginally to the right. While calling herself politically “progressive,” she is widely seen as less liberal than the man she replaces, 90-year-old Justice John Paul Stevens.
"They do not like the fact she is genuinely committed to judicial restraint rather than enshrining the Republican agenda in the Constitution,” Senate Judiciary Committee chairman Patrick Leahy complained during the three-day, off-and-on floor debate.
There’s something to that. Never before have congressional Republicans attacked a judicial nominee for his or her professed deference to enactments of the body in which they sit, such as the health-care legislation pushed through this year by President Obama. And Kagan has won praise from leading Republican legal luminaries such as former solicitors general Theodore Olson, Kenneth Starr, and Paul Clement.
On the other hand, the Republican case against Kagan is no weaker than was the Democratic case against Alito, whom Democrats—including then-Sen. Barack Obama—tried to filibuster.
While Alito’s record as of 2006 put him markedly to the right of Justice Sandra Day O’Connor, whom he replaced, and of the academic and journalistic elites, he was and is arguably closer to the center of public opinion than Kagan appears to be. He had more than 15 years of experience as a federal appeals-court judge. She has no judicial experience at all.
And while many analysts think that the appeals-court experience of all eight current justices is more than enough, Kagan’s lack of judicial experience makes it even harder than usual to predict how she will use her vast power as a justice. Besides, as a career academic, she has had little experience practicing law, either.
Republican Sen. George Voinovich of Ohio, who is retiring, stressed Kagan’s lack of judicial experience in announcing why he would oppose her after having voted for Sotomayor. The latter had been a Manhattan prosecutor, a corporate practitioner, and a federal trial judge as well as an appeals-court judge.
And it’s hardly surprising that Republicans assail Kagan for denying military recruiters the same assistance that Harvard Law School gave to other recruiters when she was dean, and for her apparently liberal views on some issues that energize the Republican base, including “partial birth” abortion, gun rights, and gay rights.
Meanwhile, the decisions by federal judges on July 28 striking down Arizona’s tough anti-illegal-immigrant law and on Aug. 4 declaring a sweeping federal constitutional right to same-sex marriage ratcheted up conservative angst about liberal judges.
The real explanation for the strong Republican vote against Kagan is not that Senate Republicans are more partisan than Democrats, or that the conservative justices are more “activist” as a group than the liberals. It is that in recent decades the Senate has become steadily more partisan.
Gone are the days when the Senate confirmed the president’s choices of justices and judges of diverse ideologies lopsidedly, as long as they were well qualified professionally and scandal-free. Indeed, not too long ago, unanimous votes to confirm were common: Stevens in 1976, O’Connor in 1981, Antonin Scalia in 1986, Anthony Kennedy in 1988.
The modern era of bitter battles over Supreme Court nominees began in 1987 with the liberal assault on archconservative Reagan nominee Judge Robert Bork, who went down to defeat by 58 to 42, and archconservative George H.W. Bush nominee Thomas.
For a time, less controversial nominees such as Kennedy, Ginsburg, and Breyer continued to enjoy fairly smooth sailing. But the partisan warfare over judges—and much else—continued to escalate. It culminated in Democratic filibusters of well-qualified George W. Bush court nominees such as Miguel Estrada, who withdrew in frustration in 2003, and the attempted filibuster of Alito.
Republicans have not filibustered a would-be justice or judge in many decades, if ever. But if they had the votes, many would have pressed for a filibuster of Kagan.
The trend toward ever-more-bitter partisanship suggests that if the coming election shrinks the current 59–41 Democratic majority, as expected, and the Senate again becomes closely balanced, filibusters of Supreme Court nominees of both parties could become routine.
Stuart Taylor Jr. is a contributing editor for NEWSWEEK and National Journal.