The Senate has voted 63 to 37 to confirm Elena Kagan as the next Supreme Court justice. The vote was largely along party lines, with one Democrat (Ben Nelson of Nebraska) voting against her, and 5 Republicans voting for her.
Even some moderate Republicans like Scott Brown of Massachusetts and George Voinovich of Ohio voted against Kagan, citing her lack of legal and judicial experience. Kagan has never been a judge, and has seldom even been inside a courtroom. Senator Brown lamented that Kagan lacks “practical courtroom experience.” Senator Voinovich noted that “her experience is particularly limited,” and that contrary to Kagan’s claims, she had less “academic writing than other Members of the Supreme Court.”
She has been criticized by conservatives and liberals alike for her allegedly scanty output as a law professor. Liberal law professor Paul Campos says that “Kagan’s scholarly writings are lifeless, dull, and eminently forgettable.”
As Solicitor General, she failed to file an amicus brief defending federal sentencing laws in Graham v. Florida. Kagan zealously defended the most censorious aspects of the McCain-Feingold law, which violated the First Amendment, and her office argued that the federal government could even ban books advocating the defeat of a politician.
As dean of Harvard Law School, she banned the military from Harvard, challenging a federal law that granted equal access to military recruiters. She claimed the law, which applied to recipients of federal funds, was unconstitutional — a position unanimously rejected by the Supreme Court.
Kagan made implausible claims in her confirmation hearings about her work as solicitor general. The solicitor general is the federal government’s top litigator. As such, her opinion would have been sought about the new health care law signed by the president this year, and pending constitutional challenges to the law brought by state attorneys general. But Kagan, incredibly, denies having ever expressed “any opinion whatsoever on any litigation or potential litigation coming out of the health-care bill.” Kagan made these implausible claims to avoid having to recuse herself from hearing any challenge to the new health care law, even though she has an ethical obligation to recuse herself under canons of judicial ethics. (In two 5-to-4 Supreme Court decisions, the Supreme Court struck down regulations of non-economic activity under the Commerce Clause. The new health care law goes even further by regulating inactivity, since it penalizes a failure to buy health insurance.)