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Senate confirms Elena Kagan, as same-sex marriage debate looms

On Thursday, the Senate confirmed Elena Kagan as the 112th justice of the Supreme Court, and only the fourth female justice. (AP Photo/Alex Brandon)

The Senate confirmed Elena Kagan to the Supreme Court Thursday, handing the Obama administration a political victory in an otherwise tumultuous year and installing only the fourth woman to serve on the bench.

Kagan, the solicitor general and a former dean of Harvard law school, was confirmed by a vote of 63 to 37 after a freewheeling confirmation process that focused as much on the broader role of the Supreme Court as on the nominee herself. Republicans and Democrats sparred over the authority of the court in protecting the rights of individuals and in curbing the expansion of the federal government. In an attempt to allay Republican fears that she would be an “activist” judge, Kagan cast herself as an advocate of “judicial modesty.”

Democrats who praised Kagan before her confirmation Thursday hewed closely to that line as well.

“Solicitor General Kagan demonstrated an impressive knowledge of the law and fidelity to it. She spoke of judicial restraint, her respect for our democratic institutions, and her commitment to the Constitution and the rule of law,” Senator Patrick Leahy, Democrat of Virginia and chairman of the Judiciary Committee, said in remarks on the Senate floor.

Stephanie Schriock, the president of EMILY’s List, called Kagan a “trailblazer for women,” whose confirmation brings “us that much closer to a day when the court reflects true gender parity.” And earlier on Thursday, Justice Ruth Bader Ginsburg hailed Kagan’s impending confirmation as a landmark achievement that would enrich the demographic makeup of the court. “To me, it’s one of the most exhilarating developments,” Ginsburg told The Associated Press.

The historic nature of Kagan’s confirmation, though, was overshadowed in part by a contentious ruling in federal court Wednesday that invalidated California’s voter-approved ban on same-sex marriage, which now seems all but certain to reach the Supreme Court. Commentators and legal observers have scoured Kagan’s thin paper trail as a law professor, legal adviser to the Clinton White House and solicitor general to divine how she might vote in the case.

Early in the confirmation process, for example, gay rights advocates were alarmed by a statement Kagan had made after her nomination as solicitor general in 2009. Asked during an exchange with the Senate Judiciary Committee if the Constitution guaranteed a right to same-sex marriage, Kagan replied, “There is no federal constitutional right to same-sex marriage.” Later, Kagan said she meant only that the courts had not yet interpreted the Constitution as guaranteeing same-sex couples the right to marry.

Kagan has also said, for example, that she opposes the military’s “don’t ask, don’t tell” policy, which bars gays and lesbians from serving openly in the armed forces. But in questioning before the Judiciary Committee earlier this year, Kagan said that, as solicitor general, she had sought “to vigorously defend all statutes, including the statute that embodies the ‘don’t ask, don’t tell’ policy.”

Some activists and legal scholars fear that the same principle might apply to her view of California’s ban on same-sex marriage, especially if she follows through on her vow to exercise “judicial restraint.” Kagan’s apparent deference to the political process could override her personal opposition to a ban on same-sex marriage, the thinking goes. As Kagan said in her testimony before the Senate Judiciary Committee in June: “I don’t think courts are all there is in this government.”

Still, most of the country’s leading LGBT rights organizations have welcomed Kagan’s nomination to the Court, and they reiterated their support for her confirmation on Thursday. Joe Solmonese, president of the Human Rights Campaign, pointed to Kagan’s fierce opposition to the “don’t ask, don’t tell” policy as the dean of Harvard law school, and praised her promise of a “fair shake for every American” as an implicit commitment to LGBT equality.

“We commend the Senate for confirming Solicitor General Elena Kagan to the Supreme Court,” Solmonese said in a statement. “She has demonstrated an understanding of the need for equality for all Americans and her record indicates she may be more familiar with how laws and policies affect the LGBT community than any previously confirmed justice.”

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