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Senate begins debate on Kagan nomination to high court

By Bill Mears, CNN Supreme Court Producer
STORY HIGHLIGHTS
  • Floor debate begins on potential Supreme Court Justice Elena Kagan
  • Five Republicans have signaled their intention to vote for her, virtually guaranteeing nomination
  • Kagan would replace John Paul Stevens, the longest-tenured justice on the high court

Washington (CNN) -- Senators began floor debate Tuesday on the nomination of Elena Kagan to the Supreme Court, with Republicans mustering little desire to delay a final vote. The 50-year-old solicitor general is expected to be confirmed as the 112th justice on Thursday, and could be sworn into her judicial post by week's end.

The start of three days of off-and-on debate centered on Kagan's lack of judicial experience, and whether that would hurt her ability to sit on the nation's highest court. All nine members of the current court came from various federal appeals courts.

"I have long urged presidents from both political parties to look outside what I have called 'the judicial monastery,'" said Sen. Patrick Leahy, D-Vermont, chairman of the Judiciary Committee, who, by tradition, kicked off the Senate debate. "Her credentials and legal abilities have been extolled by many from across the political spectrum including [retired] Justice [Sandra Day] O'Connor and Justice [Antonin] Scalia. No one can question the intelligence or achievements of this woman. No one should question her character either."

The committee's ranking Republican, Sen. Jeff Sessions, R-Alabama, raised concerns that her past work in the Clinton White House and her lack of a judicial background would make her a political "activist" on the bench.

"I think a real lawyer or experienced judge who had seen the courtroom and the practice of law would not have tried as she did to float their way through a [Senate confirmation] hearing in the manner that she did," Sessions said. "Her testimony failed to evidence an understanding of the gravity of the issues with which she was dealing and the important nature of her role in them."

Kagan's confirmation was in little doubt as the debate began. Five Republicans have so far signaled their intention to vote for her, meaning conservatives don't have the strength in numbers to delay the proceedings with a filibuster.

A key GOP "undecided" announced he would oppose Kagan. In floor remarks, Sen. George Voinovich, R-Ohio, echoed concerns of his colleagues that her lack of judicial and litigation experience -- when taken together with her entire professional record -- makes her unqualified to sit on the court.

"I would argue that Gen. Kagan has been nominated based on her friendships and personal attachments with President Obama and others at the White House, not based on objective qualities that would indicate she is qualified to be a Supreme Court justice," said Voinovich-- who is retiring from the Senate this year. He was among nine Republicans who backed Justice Sonia Sotomayor last year.

Kagan would become only the fourth woman ever to sit on the prestigious bench, and several female Democrats-- including Jeanne Shaheen, Amy Klobuchar, and Kirsten Gillibrand -- praised her as a well-qualified lawyer with "real world" experience in government and academia.

If confirmed, the New York native and former Harvard Law School dean would replace the retiring Justice John Paul Stevens. She was tapped by President Obama on May 10 and the Judiciary Committee last month sent her nomination to the floor.

A number of advocacy groups still hope to score political points on the nomination. In a fresh e-mail to lawmakers, the National Rifle Association warned this was their "last chance to oppose Elena Kagan's confirmation to U.S. Supreme Court." The powerful gun rights group had last month said senators would be held politically accountable this election year if they supported Kagan, whom the NRA called a "serious opponent of our Second Amendment rights."

Only one Democrat has announced his opposition, Sen. Ben Nelson of Nebraska. "I have heard concerns from Nebraskans regarding Ms. Kagan, and her lack of a judicial record makes it difficult for me to discount the concerns raised by Nebraskans, or to reach a level of comfort that these concerns are unfounded," he said in a statement.

Sonia Sotomayor, Obama's first high court pick, was easily confirmed last August by a 68-31 vote, which included all Democrats. It is unlikely Kagan will receive that level of support but a current analysis of current and likely votes shows she would get more support than Justices Samuel Alito (58-42) in 2006 and Clarence Thomas (52-48) in 1991. Both were nominated by Republican presidents.

Congressional sources have said there was heated behind-the-scenes tussling in recent days over the schedule of floor debate, with Republicans leaders frustrated they would not receive more than time for public deliberations. Majority leader Harry Reid, D-Nevada, and Minority Leader Mitch McConnell, R-Kentucky, were able to work out three days of debate. The Senate is expected to go on its August recess later this week, and the Kagan vote could be its last major piece of legislative business.

Senate GOP whip Jon Kyl, R-Arizona, a member of the Judiciary Committee who opposes Kagan, last Friday said recent high court nominees John Roberts, Alito, and Sotomayor received between three and five full days of debate. "I don't know how you shut senators up and say they don't have a right to speak," he told CNN. "That would not be a good thing."

Some Democrats had privately urged less than two days of debate, covering just Wednesday and Thursday. Beginning debate Tuesday morning is likely to temper any Republican efforts to delay a floor vote beyond this week. The White House has urged Kagan's confirmation in time for her to begin her judicial duties before the court begins its session in early October.

 
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