U.S. Sens. Lindsey Graham and Jim DeMint on Thursday offset each other's votes on Solicitor General Elena Kagan to sit on the Supreme Court, with Graham backing her to become the third sitting female justice and DeMint opposing her.
The Senate confirmed Kagan by a 63-37 margin that largely followed party lines. Graham joined four other Republicans in voting for her; DeMint was one of 37 GOP senators to oppose her, along with Democrat Ben Nelson of Nebraska.
"My view of Elena Kagan is quite simple," Graham said on the Senate floor before the vote. "I found her to be a good, decent person - well qualified in terms of her legal background to sit on the court."
The outcome marked the second time in a year that Graham and DeMint, both South Carolina Republicans, parted paths in voting on a high court nominee by President Barack Obama.
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Graham had more GOP company in the Aug. 6, 2009, Senate vote to confirm Sonia Sotomayor as the first Hispanic justice. He was among nine Republicans who supported her.
Graham and DeMint expressed widely divergent views of their constitutional roles as senators in exercising the founding document's "advice and consent" oversight of presidential nominations.
DeMint, heavily favored to win his second Senate term in November, criticized Kagan as a liberal activist willing to bend constitutional principles to suit her political agenda.
"I oppose Ms. Kagan's nomination because she, in my opinion, does not believe in constitutional limited government," DeMint said before the vote. "She does not believe in the original intent of the Constitution."
Graham, a military lawyer, said Obama had earned the right to choose a justice who reflects his political views with his 2008 election to the White House.
"Her views are well to the left of me and my views," Graham told McClatchy after the vote. "But under both the constitutional and historical standards of Supreme Court confirmations, my vote is not supposed to be based on whether I, as a senator, agree with the nominee."
Kagan succeeds Justice John Paul Stevens, who retired from the high court in June at the age of 90. Stevens was part of the high court's liberal wing, which Kagan is expected to join, so she is unlikely to shift the philosophical balance.
With Kagan's elevation, three of the nine Supreme Court justices are women for the first time in U.S. history. In addition to Obama's two picks, Ruth Bader Ginsburg joined the high court in 1993 after her nomination by President Bill Clinton.
Graham noted that the late Sen. Strom Thurmond, the long-serving South Carolina Republican he succeeded in the Senate, had voted to confirm Ginsburg.
The other four GOP senators who voted to confirm Kagan were Olympia Snowe and Susan Collins of Maine, Judd Gregg of New Hampshire and Richard Lugar of Indiana.
Sandra Day O'Connor, nominated by President Ronald Reagan, served from 1981 until her retirement in 2006 as the only female justice chosen by a Republican president.
DeMint said his personal meeting with Kagan, who has never been a judge, persuaded him to vote against her confirmation.
"When Ms. Kagan was in my office and I asked, 'Does the Constitution limit us from doing anything,' she really could not come up with a good answer," he said. "Ms. Kagan talked a lot about (legal) precedents, which are just previous court rulings, not much about the Constitution being our standard."
Kagan, a 50-year-old former Harvard Law School dean, had a joke-filled series of exchanges with Graham during her Senate Judiciary Committee hearing last month, when he was the only Republican on the panel to vote to confirm her.
During this week's Senate debate, Democrats lauded Kagan, a self-described "progressive" who will become the only sitting justice without prior experience as a judge, as a fresh voice.
"Solicitor General Kagan's experience outside the judicial monastery will be valuable to her when she is confirmed," Senate Judiciary Committee Chairman Patrick Leahy of Vermont said. "No one can question the intelligence or achievements of this woman."
Republicans painted Kagan as unqualified and harboring dangerous liberal tendencies.
"While she is truly intelligent, the exceptional qualities of her mind may be better suited to dealing with students and unruly faculty than with the daily hard work of deciding tough cases before the Supreme Court," said Sen. Jeff Sessions of Alabama, the committee's top Republican.
The court has agreed to hear 37 cases in its next term, about half the number likely to be adjudicated starting in October. Kagan is expected to meet with other justices next month to decide which other cases might be considered.
Among the issues certain to confront Kagan is a challenge to a new federal court decision striking down California's ban on gay marriage.
Graham said Obama had put forth enormous effort to win hard-fought 2008 Democratic primaries and then to defeat Republican presidential nominee John McCain, Graham's friend and an Arizona senator, in the November election.
"Choosing a liberal lawyer from a president who campaigned and governs from the left is not a wrong reason" for Kagan to sit on the Supreme Court, Graham said.
"The wrong reason would be if the person you chose was not worthy of the job, did not have the background or the moral character to administer justice. I cannot find fault with Elena Kagan using that standard," he said.
Kagan has taken tough stands, Graham said, on terrorism issues as solicitor general representing the federal government in cases before the Supreme Court.
"She has had an opportunity to represent the United States before the Supreme Court, arguing that this nation is at war, and the people who attacked us on 9/11 and who continue to join al-Qaida are not some common criminals, but people subject to the law of armed conflict," Graham said.