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Elena Kagan Critics Point to Close Confirmation Vote

Elena Kagan

A conservative group opposed to Elena Kagan's confirmation to the Supreme Court highlighted the narrow margin by which the Senate approved her nomination as a sign that she is unfit to join the court.

Supporters of Kagan, however, called the today's confirmation a remarkably smooth process. In reality, the support Kagan received in the Senate was not as strong as some of the Supreme Court's current members, but it was stronger than the support for others.

Kagan will be sworn onto the Supreme Court on Saturday, making her the third woman currently on the court. She was confirmed today by a vote of 63 to 37. Those voting for Kagan included 56 Democrats, two independents and five Republicans (Susan Collins of Maine, Lindsey Graham of South Carolina, Judd Gregg of New Hampshire, Richard Lugar of Indiana, and Olympia Snowe of Maine). Those voting against her included 36 Republicans and one Democrat (Ben Nelson of Nebraska).

"Kagan's confirmation had the least support of any Democratic nominee for over 100 years, and she is the least popular nominee in recent memory to win confirmation," Carrie Severino, Chief Counsel and Policy Director of the Judicial Crisis Network, said in a statement today. "The bipartisan opposition to her nomination indicates that even Democrats are worried that a vote for Kagan will tie them to the president's unpopular legislative agenda in an important election year."

By comparison, President Obama's first pick for the Supreme Court, Justice Sonia Sotomayor, was confirmed by a vote of 68 to 31. Some Republican senators lamented during Kagan's confirmation hearings that they felt that, in light of some recent court decisions, Sotomayor had been disingenuous during her own confirmation hearings. Their remarks suggested that Sotomayor's votes on the Supreme Court made them less inclined to support Kagan.

Justice Stephen Breyer, nominated to the court by President Clinton in 1994, was confirmed by a vote of 87 to nine. Mr. Clinton's other nominee, Justice Ruth Bader Ginsburg, was confirmed in 1993 by a 96-to-three vote.

Justice John Roberts, nominated by President Bush in 2005, also received strong support with a confirmation vote of 78 to 22. President Ronald Reagan's nomination of Justice Anthony Kennedy was approved by a vote of 97 to zero in 1988.

On the other hand, two other justices were confirmed by even smaller margins than Kagan. Justice Samuel Alito was confirmed in 2006 by a vote of 58 to 42. Justice Clarence Thomas was confirmed in 1991 with a vote of 52 to 48.

The moderate liberal group Third Way praised Kagan today. Third Way President Jon Cowan remarked, "Justice Kagan's confirmation was among the smoothest we've ever witnessed, due to her impeccable record, her unmatched intellect, and her moderate worldview."

He added, "It can only be chalked up to election-year politics that 36 Republicans voted against her."

Photos: Elena Kagan
Photos: Kagan's Confirmation Hearing Special Report: Elena Kagan

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