The Senate has confirmed Elena Kagan as the 45th solicitor general of the United States — and as the first woman ever to hold the position.
Kagan, 48, will be the government’s chief advocate before the Supreme Court, though she has never argued a case there or before any other appellate court. She has been dean of Harvard Law School since 2003 and is widely seen as a possible future nominee for the Supreme Court.
Senators voted 61-31 to confirm her after three hours of debate that focused on whether she has the right kinds of experiences to be solicitor general.
Sen. Ted Kaufman (D-Del.) recalled meeting Kagan when she worked for Kaufman’s predecessor and former boss, then-Sen. Joe Biden (D-Del.), as a special counsel in the summer of 1993. He said her talents were clear then.
“Elena Kagan has the piercing intellect, the superb judgment, and the wealth of experience to be an outstanding solicitor general,” Kaufman said.
Sen. Jeff Sessions (R-Ala.) questioned Kagan’s lack of any appellate advocacy, arguing that the hole in her résumé makes her unqualified. “So far as I can observe, other than time in the White House Counsel’s Office, Dean Kagan has practiced law for only two years in a real-world environment,” he said.
Prior to her elevation to dean, Kagan served as a law professor at Harvard and at the University of Chicago. She worked in the Clinton White House for four years as a counsel and domestic policy adviser. A graduate of Princeton University and Harvard Law School, she clerked for Justice Thurgood Marshall and Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit. She was an associate at Williams & Connolly for two years.
As Legal Times reported in January, the selection of experienced appellate litigators for the position of solicitor general is a relatively recent phenomenon that parallels specialization at the Court generally. Past solicitors general who had not argued before the Court until after their selection include Robert Bork, Wade McCree, and Kenneth Starr.
Sen. Arlen Specter (R-Pa.), the ranking member of the Senate Judiciary Committee, said he was voting against Kagan because of her unwillingness to detail her views on controversial constitutional questions. “I’m not prepared to relinquish the prerogatives of the Senate to ask those kinds of questions, Specter said.
Kagan, who was admitted to the Supreme Court bar shortly after President Barack Obama nominated her, will not have to wait for a chance to argue her first case. Though she might take time to get up to speed on pending cases, the Supreme Court is next scheduled to hear oral arguments Monday.
UPDATE: The roll call has been posted. All Democrats who voted supported Kagan. Most Republicans opposed her. The GOP senators who voted "Yea" were Tom Coburn (Okla.), Susan Collins (Maine), Judd Gregg (N.H.), Orrin Hatch (Utah), Jon Kyl (Ariz.), Richard Lugar (Ind.), and Olympia Snowe (Maine).