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Kagan Vote: DiFi & Babs Toe SCOTUS Party Line

Friday, August 6th, 2010

By James Kuo
California News Service
Special to Calbuzz

When California Senators Dianne Feinstein and Barbara Boxer voted Thursday to confirm Elena Kagan to the Supreme Court, they kept intact a pattern of party loyalty that increasingly defines high court nominations.

Since they arrived in the Senate more than 17 years ago, Feinstein and Boxer both have voted for all four justices nominated by Democratic presidents – and against both justices nominated by a Republican.

Both have made clear their belief that a nominee’s judicial philosophy – not merely their experience, integrity and intellect — is a perfectly valid criterion in deciding whether to support a nomination.

The Senate confirmed Kagan by a 63 to 37 vote with all but one Democrat voting in favor and all but five Republicans voting against.

In speaking to her colleagues, Feinstein said Kagan’s professional qualifications alone were not enough to win her support.

“A nominee must also show that he or she has the appropriate judicial temperament, has the commitment to follow the law, and bring a judicial philosophy that will not pull the Court outside of the mainstream. And I have confidence in her in each of these areas.

Boxer praised Kagan’s “intellect, her broad range of legal experience, her sense of fairness, and her profound respect for the law.’’

Thursday’s vote underscored the growing partisan divide on judicial confirmations.

A quarter century ago, Justice Antonin Scalia was confirmed by a 98-0 vote; the only Republicans to support Kagan were Lindsey Graham of North South Carolina, Richard Lugar of Indiana, Judd Gregg of New Hampshire and Olympia Snowe and Susan Collins of Maine.

Graham’s support for Kagan, which angered many of his fellow conservatives, illustrates the divide over how the Senate exercises its responsibility to provide “Advice and Consent’’ as put forth in the Constitution.

Unlike Feinstein, he said that a nominee’s ability to serve, not judicial philosophy, should be the deciding factor in confirming a justice.

“She is not someone I would have chosen,’’ Graham said of Kagan on the Senate floor. “But it’s not my job to choose. It’s President Obama’s job and he earned that right.”

Feinstein and Boxer’s perfect record of supporting the choices of their own party’s presidents and rejecting those of the opposition is increasingly common among newcomers to the Senate. However, among the 32 senators who have served as long as Feinstein and Boxer, only eight – all Democrats – have voted so consistently along party lines.

Feinstein, a member of the Senate Judiciary Committee which conducts hearings on the nominees, has spoken bluntly on the role of judicial philosophy in the confirmation process.

“Mine is a vote that is made with the belief that a person’s legal reasoning and judicial philosophy, especially at a time of crisis, at times of conflict, and at times of controversy, do mean a great deal,’’ Feinstein said on the Senate floor in 2006 before she voted against Justice Samuel Alito.

Feinstein listed twelve cases throughout history in which legal views and philosophy – not competence – were the rationale for rejecting Supreme Court nominees.

“It is my belief that (Alito’s) legal philosophy and views will essentially swing the Court far out of the mainstream, toward legal philosophy and views that do not reflect the majority views of this country.’’

A year earlier, Feinstein praised John Roberts’ “brilliant legal mind’’ and his “love and abiding respect for the law.’’ Yet she voted against his confirmation after expressing concern about him “staying in touch with people who have different life experiences,’’ and his failure to clearly articulate his judicial philosophy.

The partisan divide has been more pronounced over the past five years.

Each of the sitting justices who preceded Roberts received overwhelming bipartisan support. Both of President Reagan’s nominees, Scalia and Anthony Kennedy, were confirmed unanimously.  Clarence Thomas, President H. W. Bush’s nominee was confirmed by a close 52 to 48 vote after a former employee accused him of sexual harassment. Justices Ruth Bader Ginsburg and Stephen Breyer, both Clinton appointees, received large bipartisan approval.

California’s senators have not been as partisan on other federal judgeships. Feinstein voted against only eight of the 323 federal judges nominated by President Bush. Boxer voted against 12. Both senators voted in favor of every judge nominated by President Clinton.

California News Service reporter James Kuo is a senior at the University of California Irvine. CNS, a project of UC’s Washington Center and the UC Berkeley Graduate School of Journalism, may be reached at cns@ucdc.edu

SUPREME COURT CONFIRMATION VOTES

Antonin Scalia (Reagan)               1986     98-0

Anthony Kennedy (Reagan)       1988    97-0

Clarence Thomas (Bush)               1991     52-48

Ruth Bader Ginsburg (Clinton)   1993  96-3

Stephen Breyer (Clinton)              1994     87-9

John Roberts (Bush)                       2005    78-22

Samuel Alito (Bush)                        2006    58-42

Sonia Sotomayor (Obama)           2009    68-31

Elana Kagan (Obama)                      2010   63-37

Carly does some deep thinking: Going all somber and Senatorial on us, Hurricane Carly Fiorina announced with great solemnity Thursday that she decided she would vote against Kagan’s nomination.

If she had a vote. Or if anybody asked her.

“I closely followed the Senate’s confirmation hearings and have taken time to carefully consider how I would vote on Elena Kagan’s nomination were I a member of the Senate today,” she said,  suspense building unbearably.

Scene: Night at Monticello. Carly Fiorina sits at an old oak campaign desk, gazing out into the dark, face lit only by the reflection in the window glass of a single flickering candle.

Brow deeply furrowed, she swiftly scratches a few sentences with a quill pen on parchment. As she dips the writing instrument back into a small bottle of blue ink , the camera zooms in for a tight shot from behind,  revealing what she has just written: “Memo to self: Get Fred Davis in here to brainstorm a new spot – me talking to Jefferson. Or is it Hamilton? I always get those two mixed up.”

After much deliberation and chin stroking, Carly duly informed us in her statement, that while Kagan has many good qualities:

“…the process also underscored her lack of experience as a jurist, which in my mind is a key element in determining whether or not a nominee is qualified to serve as a member of the Supreme Court…

“Unfortunately, her complete lack of judicial experience coupled with a public record that sheds minimal light on how she would execute these duties gives me great pause about her qualifications to serve on the highest court in the land.  It is for that reason that I have decided not to support her nomination to this position.”

Calbuzz fun at home for the kids: See what happens when you replace the word “jurist” with “legislator,”  “Supreme Court” with “Senate” and “the highest court in the land” with “the world’s greatest deliberative body.”  You’ll be amazed!

Hurricane history lesson: What does Elena Kagan have in common with Louis Brandeis, Felix Frankfurter, John Marshall, William Rehnquist, Earl Warren and 36 percent of all the Supreme Court justices ever confirmed? Hint: The answer is not that they all single-handedly trashed world-class tech companies.