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From NPR News, this is ALL THINGS CONSIDERED. I'm Melissa Block.
In one of the last votes of the summer, the Senate confirmed Solicitor General Elena Kagan to the Supreme Court. The final vote was 63 to 37. Five Republicans crossed party lines to support her. So come fall, for the first time, three women will be sitting on the high court. Kagan will become the fourth woman to serve on the court ever.
NPR's Audie Cornish reports.
AUDIE CORNISH: Elena Kagan was the first woman named dean of Harvard Law School and the first to become solicitor general. Her latest distinction has been little discussed but surely noticed by women of the Senate.
Senator BARBARA MIKULSKI (Democrat, Maryland): I'm of the generation when, gee, a woman on the court was going to be viewed as a novelty.
CORNISH: That's Senator Barbara Mikulski, a Democrat from Maryland.
Sen. MIKULSKI: For we women, the reason we're advocating for her is not about gender, but about the legal agenda before this Supreme Court. And we want to be able to have a justice on that court who is extremely qualified, but brings a strong commitment to civil rights, to equal justice.
CORNISH: But it's just that attitude that raised red flags with Republicans such as Orrin Hatch of Utah.
Senator ORRIN HATCH (Republican, Utah): The critical confirmation question is the kind of justice Ms. Kagan would be. Will the Constitution control her? Or does she believe that she may control the Constitution?
CORNISH: Hatch and others went after Kagan's resume for what was on it and what wasn't. The solicitor general had served as a Clinton administration adviser. Earlier in her career, she clerked for the late Supreme Court Justice Thurgood Marshall.
Hatch pointed to that as evidence that Democrats are pushing politics over judicial impartiality.
Sen. HATCH: Some on the other side have suggested that honestly identifying Justice Marshall's judicial philosophy for what it is somehow disparages Justice Marshall himself. I assume that this ridiculous and offensive notion is their way of changing the subject because they cannot defend an activist politicized role for judges.
CORNISH: As for what's missing from Kagan's resume, experience as a judge and a paper trail on hot button topics like abortion and gun rights, that issue hurt her with Ben Nelson of Nebraska.
Senator BEN NELSON (Democrat, Nebraska): Based on my conversations with her and reading of her remarks, I can't quell those concerns back home, nor can I quell my own concern about where she may be in terms of the Second Amendment.
CORNISH: Nelson was the sole Democrat to announce his opposition and the first Democrat in decades to vote against his party's Supreme Court pick. Others pointed to that same resume in support of Kagan's confirmation.
South Carolina Republican Lindsey Graham says he's voting for Kagan in part because of her experience defending the Obama administration's national security policies. But also because he says the judicial nominations process is over-politicized.
Sen. GRAHAM: If I can't vote for her, then how can I ask someone on the other side to vote for that conservative lawyer, maybe judge, who has lived their life on the conservative side of the aisle? That day will come. I hope sooner, but one day that day is going to come.
CORNISH: President Obama's nominee is moving into the seat vacated by liberal-leaning Justice John Paul Stevens. And she isn't expected to shift the ideological makeup of the court. But the fairly narrow vote shows that the shift in the Senate away from widespread bipartisan approval of Supreme Court nominees continues unabated.
Audie Cornish, NPR News, the Capitol.
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