In a development as surprising as this morning's sunrise, the Senate Judiciary Committee on a near party line vote favorably moved Elena Kagan's Supreme Court nomination to the full Senate for its consideration, putting President Obama's pick one step away from a lifetime seat on the high court.
Tuesday's 13-6 vote is the penultimate act for a nomination process that has lacked great controversy or overwhelming interest.
South Carolina Senator Lindsey Graham was the only member of either party to break ranks. The Republican said his vote for Kagan was not a hard decision and praised Obama for making a wise choice. While Graham said he could give 100 good reasons for opposing Kagan he cited Alexander Hamilton's view in Federalist #6 that the role of a senator is to give deference to the president's appointments. Graham reiterated his oft-stated observation that "elections have consequences."
The contrarian role is a familiar one for Graham who last year was the only committee Republican to vote for now Justice Sonia Sotomayor.
Committee Chairman Sen. Patrick Leahy, D-Verm., has been Kagan's strongest defender on the committee said the nominee "demonstrated an impressive knowledge of the law and fidelity to it....She made clear that she will base her approach to deciding cases on the law and the Constitution, not politics or an ideological agenda."
For the second year in a row, the committee's ranking Republican, Sen. Jeff Sessions, R-Ala., has been unable to muster sufficient opposition to block an Obama high court appointee. In announcing his vote against Kagan, Sessions said he was bothered by Kagan's testimony which he likened to political spin and he disapprovingly called her a "political lawyer."
Sessions took issue with he said was Kagan's lack of a robust legal experience. Kagan, a former dean of the Harvard Law School has never been a judge and until becoming Solicitor General last year had never argued a case in a courtroom.
More significantly, Sessions objected to Kagan's testimony about her time at Harvard blocking full access to military recruiters because of her opposition to the federal law preventing the service of openly gay personnel in the armed forces. He said Kagan knew or should have known that her actions violated the law and that her testimony before the committee was "at best inaccurate and at worst intellectually dishonest."
This theme was picked up by other Republicans including Sen. Jon Kyl, R-Ariz., who said he could not believe Kagan's testimony about her time at Harvard. "It is almost unfathomable, for example, that someone with Ms. Kagan’s considerable legal acumen could have, as she asserted, ‘always thought that we were acting in compliance’ with the Solomon Amendment," Kyl said.
Graham said the Harvard episode was more of a negative reflection on the school than it was on the military and defended Kagan saying "she is a loyal American and loves the military as much as anyone else."
Before taking her seat on the Supreme Court, Kagan must win the approval of the full Senate. That vote is expected before senators break for their summer recess in early August.