The U.S. Senate today confirmed the appointment of Solicitor General Elena Kagan to the U.S. Supreme Court, but not without complaints from nearly every Republican opposing her nomination about her actions concerning Don’t Ask, Don’t Tell (DADT) and the Defense of Marriage Act (DOMA).
The vote was 63 to 37, with only five Republicans voting for Kagan and one Democrat voting against.
The Senate’s newest Republican member, Scott Brown of Massachusetts, voted against Kagan.
Partisan rancor continued to dominate the proceedings throughout the three days of debate and floor vote, including emotional rants about the merits of the federal law banning gays from the military. Moments after the Senate voted for Kagan, the Senate launched into a debate over whether the upcoming Defense authorization bill should include a measure seeking to repeal DADT.
Senator Jeff Sessions (R-Alabama) took to the floor numerous times over the two days of the debate on the Kagan nomination, repeating the same arguments over and over again. He said he believed Kagan defied federal laws regarding restrictions on the civil rights of gays and that, as Solicitor General, she failed to defend Don’t Ask, Don’t Tell (DADT) and the Defense of Marriage Act (DOMA).
But by Wednesday evening, he had a fresh argument: Kagan would become justice and be able to vote on the Proposition 8 case. A federal judge on Wednesday ruled the California ban on same-sex marriage was unconstitutional.
Sessions said the judge “just wiped out Proposition 8 that was passed by a majority of people in California…”
“This judge struck down Proposition 8 and, obviously, at some point this will get to the Supreme Court,” said Sessions. “The nominee [has] already demonstrated at Harvard that her views about Don’t Ask, Don’t Tell and similar social marriage, sexual relation matters involve such strong feelings on her part that she’s not been able to follow the law. I’m worried about that.”
Sessions went on at some length, criticizing Walker’s decision as being “replete” with “judicial activism.”
“When you empower a judge to do these kinds of things, you’ve given them control over you,” said Sessions. “You’ve given them the power to re-define marriage, when the people of the state don’t want to. And you have no recourse – they have a lifetime appointment.”
Senator John McCain (R-Ariz.) discussed his opposition to Kagan’s nomination, and staged a colloquy with Sessions in order to mock a statement by Kagan, during her confirmation, “I revere the military.”
McCain took particular pains to dramatize the recruitment controversy, painting a picture of a military officer, perhaps one just back from the war in Iraq, “wandering” the halls of Harvard alone and “hoping someone would stop” him and ask about opportunities to serve in the military. McCain said he would oppose Kagan’s nomination “precisely for this reason.” He and several other senators referred to Kagan’s treatment of military recruiters as amounting to a “separate but equal” accommodation.
Senator Sam Brownback (R-Kan.) referred to Kagan’s efforts around military recruiters at Harvard Law School as a “scandal,” in which she “defied the law.”
Senator Kay Bailey Hutchison said Kagan “hasn’t disavowed judicial activism, which makes me think that its a guiding principle in her thinking.” She said it was clear that Kagan’s “personal views were instructing her professional decisions in order to promote a social agenda.”
Senator Tom Coburn (R-Okla.) raised his voice in considerable emotion to suggest Kagan doesn’t embrace the concepts of “life, liberty, and the pursuit of happiness, and that her appointment would, essentially, destroy the nation.
“Her wisdom and her vision is very different from our founders, our constitution, and our natural rights,” said Coburn. “This will be a huge mistake for this country.”
Kagan’s appointment will make her only the fourth woman in history to serve on the nation’s highest court. She will also bring to three the number of women serving on the nine-member bench—the largest number of women members in history.
Senator Barbara Boxer (D-Calif.) spoke in support of Kagan’s nomination, but mentioned nothing about the controversies surrounding DADT or DOMA.