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.