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Kagan to Be Sworn in Saturday as 112th Court Justice

Elena Kagan will become the nation’s 112th justice tomorrow at a U.S. Supreme Court ceremony after the Senate gave President Barack Obama his second appointment to the high court in two years.

Kagan, 50, a former Harvard Law School dean, will be the fourth woman and just the sixth member of the court who isn’t a white male. For the first time, the nine-member court will have three women as she joins Justices Sonia Sotomayor, Obama’s first appointee, and Ruth Bader Ginsburg.

Kagan was the guest of honor today at a White House reception where Obama said she has won the respect and support from people and groups across the political spectrum for her “formidable intellect and path-breaking career.”

As a member of the Supreme Court she is an example of “how our union has become more, not less, perfect over time,” the president said. The court now will be “a little more inclusive, a little more representative” of the nation, he said.

Kagan’s elevation isn’t about to alter the court’s ideological balance. In succeeding Justice John Paul Stevens, who retired after 35 years, she is likely to take his place in the court’s liberal wing. That would leave intact the court’s 5- 4 conservative majority on such issues as abortion, gun rights and campaign finance.

Kagan will be sworn in by Chief Justice John Roberts at tomorrow’s private ceremony at the Supreme Court. A formal investiture will take place on Oct. 1, three days before the justices take the bench to begin their next term.

Yesterday’s Senate vote of 63-37 was largely along party lines, with five Republicans supporting Kagan and one Democrat, Ben Nelson of Nebraska, opposing her.

Kagan’s Record

Democrats, led by Senate Judiciary Committee Chairman Patrick Leahy, said her credentials and character are beyond question. Opponents described her as a political activist who lacks judicial experience.

The ranking Republican on the Judiciary Committee, Jeff Sessions of Alabama, said she “does not have the gifts and the qualities of mind or temperament” to be a justice.

Kagan is the first woman to be U.S. solicitor general, representing the Obama administration before the Supreme Court. In another endorsement of diversity, Obama picked Sotomayor to be the first Hispanic on the Supreme Court.

Kagan’s nomination in May sparked a summer of partisan debate over the role of judges and the sharply divided high court led by Roberts. Her confirmation was never in doubt, given Democrats’ 59-41 control of the Senate.

Only Justices Clarence Thomas, approved 52-48, and Samuel Alito, opposed by 42 senators, were confirmed with more negative votes.

Possible Filibusters

Senate Republican leader Mitch McConnell of Kentucky told reporters yesterday, “The process has become much more political than it used to be, but Senate Republicans didn’t set the standard.”

In response, Senator Charles Schumer, a New York Democrat, said he wouldn’t rule out filibusters to block judicial nominations in the future. It’s “not out of the question if they are out of the mainstream,” he said.

Sixty votes are required to break a filibuster in the 100- member Senate.

A New York native, Kagan worked for four years in President Bill Clinton’s White House as a lawyer and policy adviser. She served as dean of Harvard Law School from 2003 to 2009, and in the late 1980s was a law clerk to Supreme Court Justice Thurgood Marshall.

Opponents attacked her decision as law school dean to bar military recruiters from Harvard’s campus to protest the Pentagon’s ban on openly gay troops. Kagan supported a lawsuit seeking to force the government to stop withholding funds from schools that blocked the recruiters.

No Judicial Background

Kagan will be the first person on the high court without prior experience as a judge since the appointments by President Richard Nixon of Lewis Powell and William Rehnquist almost 40 years ago.

“The 39 previous justices who lacked judicial experience had an average of 21 years of legal experience,” said Senator Orrin Hatch, a Utah Republican. “In other words, Supreme Court justices have had experience behind the bench as a judge, before the bench as a lawyer or both. Ms. Kagan has neither.”

Senator Dianne Feinstein, a California Democrat, said Kagan’s professional credentials are a plus.

“In my view, judicial experience is a useful background, but it is only one of many, and it is a background that is well represented on the court today,” she said.

Republican Backer

One of the Republicans who backed her, Senator Lindsey Graham of South Carolina, said the Constitution’s authors intended for senators to give deference to a president’s judicial selections. Kagan is experienced and in the mainstream and should therefore join the court, he said.

“She is not someone I would have chosen, but it is not my job to choose,” Graham said. “It is President Obama’s job. He earned that right.”

At her confirmation hearings, Kagan testified that she believes justices should seek more consensus when possible, while refusing to criticize decisions reached by the court under Roberts.

She also made clear she doesn’t share the “originalist” approach of Thomas and Justice Antonin Scalia, who say the Constitution should be interpreted in line with the meaning intended by the founding fathers. She also said that court precedents affirming abortion rights and those of gun owners are established law.

Umpiring Analogy

Kagan took issue with an analogy made by Roberts during his 2005 confirmation hearing, when he likened judges to baseball umpires who call balls and strikes. That is “correct in several important respects but like all metaphors it does have its limits,” Kagan said, adding that it suggests judging is a “robotic enterprise.”

Kagan was denounced by anti-abortion groups including Americans United for Life. The National Rifle Association ran ads opposing her, in part because as a law clerk to Marshall she wrote in a memo that she was “not sympathetic” to a man who said his constitutional rights were violated when he was convicted for carrying an unlicensed pistol.

In addition to Graham, Republicans supporting Kagan were Richard Lugar of Indiana, Judd Gregg of New Hampshire and Susan Collins and Olympia Snowe of Maine.

Sotomayor was confirmed last year, 68-31, with nine Republicans supporting her.

To contact the reporter on this story: Laura Litvan in Washington at llitvan@bloomberg.net

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