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The Judiciary Committee voted in support of the nomination of Solicitor General Elena Kagan to the U.S. Supreme Court seat being vacated by Justice John Paul Stevens, sending the nomination to the full Senate for consideration. On a vote of 13-6, with Sen. Lindsey Graham (R-S.C.) as the only Republican voting yes, the Senate Judiciary Committee took the action after each senator was given time to explain his or her vote.
As with the hearings, much of the Republican opposition circles around Kagan’s dealings with military recruitment at Harvard Law School as it related to the “Don’t Ask, Don’t Tell” policy and her potential views on same-sex marriage.
“I’m concerned with [her ability] to defend the Defense of Marriage Act [as solicitor general]” Sen. Chuck Grassley (R-Iowa) said, noting the Justice Department’s brief defending DOMA included a statement that the Obama administration opposed DOMA as a policy. “How do we believe that she’ll uphold a law as a Supreme Court justice when she disagrees with that law?”
Sen. Jon Kyl (R-Ariz.) criticized the decision not to appeal the Ninth Circuit’s Witt decision, calling her reasoning “hollow.” He also criticized the distinction between Kagan’s response to Sen. John Cornyn (R-Texas) during her solicitor general confirmation hearings about whether there is a constitutional right to same-sex marriage and her answer to similar questioning at this hearing. At that time, she had replied that there was no right to same-sex marriage, which she explained at this hearing as referencing the established law. Now, however, she refused to discuss the matter because, she said, a case on the topic is likely to come before the Supreme Court.
Sen. Lindsey Graham (R-S.C.), the sole Repeublican expected to support the nomination, said on that topic, “If you think same-sex marriage is prohibited by the Constitution, I doubt this is the place you’re going to be saying it, because you’re going to have to be deciding it” eventually.
Graham circles around the military recruitment issue, concluding, “I don’t believe that” Kagan has “animosity” toward the military, calling her a “loyal American.”
He then begins to explain his expected vote for Kagan, saying at one point, “I view my role … in part, protecting the independence of the judiciary. “After the hearing, it was not a hard decision to make” to support Kagan, adding that Obama chose “wisely.”