WASHINGTON — The US Senate confirmed former Harvard Law School Dean Elena Kagan as the fourth woman to serve on the Supreme Court yesterday, a position from which she could influence the nation’s laws and policies for decades.
Senator Scott Brown, the Massachusetts Republican who earlier this summer introduced Kagan to fellow senators as a “brilliant woman,’’ voted against giving her the lifetime job on grounds that she has limited courtroom experience.
“I believe nominees to the Supreme Court should have previously served on the bench,’’ Brown said in a statement. “Lacking that, I look for many years of practical courtroom experience to compensate for the absence of prior judicial experience. In Elena Kagan’s case, she is missing both.’’
Brown, through a spokesperson, declined to be interviewed about his decision, saying his statement spoke for itself.
Kagan will be the first Supreme Court justice who has not previously worked as a judge since William Rehnquist and Lewis Powell Jr. joined the court in 1972, though justices without prior judicial experiences were once much more common. Of the 111 people to serve on the high court, 40 did not have previous experience as a judge, according to the Senate Judiciary Committee.
Senator Al Franken, Democrat of Minnesota, dismissed criticism of Kagan’s lack of judicial experience.
“You only have one life,’’ Franken said yesterday. “Think of what she’s done with her life.’’
In addition to an academic career as dean and law professor, Kagan clerked for Supreme Court Justice Thurgood Marshall and worked as a lawyer and policy adviser in the Clinton administration.
As the US solicitor general in the Obama administration, Kagan has served as the federal government’s top lawyer to argue cases before the Supreme Court.
The 63-to-37 vote to confirm Kagan fell largely along party lines. Five Republicans, including Olympia J. Snowe and Susan M. Collins of Maine and Judd Gregg of New Hampshire, supported Kagan’s nomination. By comparison, nine Republicans crossed party lines last year for Justice Sonia Sotomayor. One Democrat, Senator Ben Nelson of Nebraska, opposed Kagan.
Brown was among the last senators to reveal his decision, making his announcement hours before the vote. Since arriving in the Senate last February, Brown has at times opposed Democratic initiatives, such as the health care overhaul, but also has supported measures such as one for changes in financial regulations. In voting against Kagan, Brown may please some Republicans and upset some Democrats — and leave them guessing until the next critical vote comes along.
President Obama in May nominated Kagan, 50, to replace Justice John Paul Stevens, known as the leader of the court’s liberal bloc. Kagan brings the number of women currently serving to three, the most in history.
“As father to two daughters, I’m especially proud that in an America where women comprise more than half the population, Elena Kagan now joins Justices [Ruth Bader] Ginsburg and Sotomayor in making history,’’ Senator John F. Kerry of Massachusetts said in a statement.
Obama said the vote “wasn’t just an affirmation of Elena’s intellect and accomplishments. It was also an affirmation of her character and her temperament, her open-mindedness and even-handedness, her determination to hear all sides of every story and consider all possible arguments.’’
Kagan is to be sworn in by Chief Justice John G. Roberts Jr. during a private ceremony at the Supreme Court at 2 p.m. tomorrow.
Kagan joins the court at a time of deep partisan divisions in government and deep philosophical divisions on the court, where 5-4 decisions in major cases have become commonplace. Democrats see Kagan as a bridge over the court’s ideological divide.
“Her great strength, I believe, is as a conciliator, a reconciler, who is able to bring people together,’’ Senator Dianne Feinstein, a California Democrat, said after the vote.
At Harvard, Kagan helped recruit conservative scholars and earned a reputation of working well with people of different political stripes, said Carl Tobias, a professor at the University of Richmond School of Law. “Whether that will translate into being persuasive with other justices who have been there longer remains to be seen.’’
During the three-day floor debate over Kagan’s nomination, Republicans tried to paint her as a partisan who would push a liberal political agenda. Senator Jeff Sessions, an Alabama Republican, led the attacks on Kagan’s decision at Harvard to restrict military recruiters on campus because the ban on openly gay service members violated the school’s nondiscrimination policy.
“I believe her actions, her background, and her approach to judging are unhealthy,’’ Sessions said.
Democrats hailed Kagan as a counterweight to the court’s conservative majority.
“She’ll be confirmed because she’s mainstream,’’ said Senator Charles Schumer, Democrat of New York.
Senator Lindsey Graham of South Carolina, one of the Republicans who voted for Kagan, said after the vote that Kagan was in the mainstream of liberal judicial philosophy, and that the president had won the right to pick whom he wants, with the advice and consent of the Senate.
“I’m concerned about the direction we’re taking,’’ Graham said, addressing the partisan vote tally. “The judiciary is the most fragile branch of the three branches’’ and is damaged by politicization.
Senator Dick Durbin, Democrat of Illinois, said the polarization is a by-product of election-year politics.
“It’s all about the elections,’’ he said.
As an associate justice, Kagan will soon face a number of issues that will test her views on the broad legal themes of federal power and state rights, said constitutional lawyer Jonathan Turley, a professor at George Washington University Law School. Those issues, Turley said, are already working through lower courts. They include a possible final appeal in a challenge to a California ballot initiative to ban same-sex marriage; legal challenges to portions of the national health care law, including the requirement that everyone have health insurance; and an Arizona law aimed at illegal immigration.
“Elena Kagan is in a position to hit the ground running in terms of developing her judicial philosophy,’’ Turley said.
Issues scheduled to come before the court in the fall term include prison overcrowding, the rights of defendants to have DNA tests to establish innocence, a law restricting the sale of violent video games to minors, and a free speech case involving members of a small Kansas church who travel the nation to hold antigay protests at the funerals of slain American troops.
Benjamin Wittes, who studies the Supreme Court at the Brookings Institution, a Washington think tank, said the best indicators of Kagan’s influence on the court may not be seen for years.
“You can measure influence over the short term based on cases where Elena Kagan would vote differently than John Paul Stevens,’’ Wittes said. “But justices bring different sensibilities to the table, and they convince each other about issues that are compelling to them. There may be things, 10 years from now, where we’ll say, ‘That was an innovation Elena Kagan brought to the table.’’’
Susan Milligan of the Globe staff contributed to this report. Arsenault can be reached at email@example.com.
About Political Intelligence
Glen Johnson is Politics Editor at boston.com and lead blogger for "Political Intelligence." He moved to Massachusetts in the fourth grade, and has covered local, state, and national politics for over 25 years. E-mail him at firstname.lastname@example.org. Follow him on Twitter @globeglen.