S.C. senators split on Kagan

WASHINGTON -- Sens. Lindsey Graham and Jim DeMint appeared to be headed Tuesday toward once again casting divergent votes on a Supreme Court nominee of President Obama.

On the second day of Elena Kagan's confirmation hearings, the S.C. Republicans indicated they will likely cancel each other's votes when the Senate takes up her nomination to sit on the high court.

Graham noted that several prominent conservative lawyers have endorsed Kagan, and he praised her positions on key terrorism issues as U.S. solicitor general, who argues cases before the Supreme Court on behalf of the federal executive branch.

"I'm here to say, from my point of view, that [in] this area of your legal life, you represented the United States well," Graham told Kagan at a Senate Judiciary Committee session.

DeMint became the second GOP senator to say publicly that he will vote against Kagan, as he delivered a stinging rebuke of her in an online opinion column.

"I feel compelled to oppose Solicitor General Elena Kagan's nomination to the Supreme Court," DeMint wrote in the Washington Times, a conservative daily newspaper.

"During my private meeting with her [June 9], I asked Ms. Kagan questions about the limits of federal power," DeMint wrote. "Her answers indicated her judicial philosophy is not grounded in the Constitution, and she would grant too much deference to [judicial] precedent."

The op-ed column was to be published today in the newspaper's print edition, DeMint aides said.

The two senators parted paths last August when Graham voted to confirm Sonia Sotomayor, Obama's first high court nominee, and DeMint voted against her.

Graham's aides insisted that he hadn't made up his mind on Kagan, but their exchanges Tuesday were filled with good-natured banter. They were interrupted 15 times by laughter from senators, aides, reporters and others in the crowded committee room.

At one point, Graham began a series of questions about the alleged attempt by a Nigerian man to blow up a Detroit-bound jetliner on Christmas Day last year with explosives concealed in his underwear.

"Where were you at on Christmas Day?" Graham asked.

Kagan responded: "You know, like all Jews, I was probably at a Chinese restaurant."

As laughter filled the room, Graham said, "Great answer, great answer." He added, "So, you were celebrating Hanukkah."

A few minutes later, Graham reminded Kagan that in 2005, as dean of the Harvard Law School, she and three other prominent legal scholars had written a letter criticizing his legislation limiting the rights of suspected terrorists held at the U.S. military prison in Guantanamo Bay, Cuba.

When Kagan, 50, appeared reticent to repeat her criticism, Graham good-naturedly goaded her.

"I'm not easily offended," he said. "You can say it. It would probably help me in South Carolina. Back home, it wouldn't hurt that the Harvard Law School dean was mad at Lindsey."

After Obama nominated Kagan for the high court in May, Graham praised her "strong academic background in the law" and said he'd been "generally pleased with her job performance as solicitor general."

In the clearest signal of his intent on Kagan, Graham on Tuesday used identical language to support Obama's right to nominate her as he employed last year in explaining why he would vote for Sotomayor, the first Hispanic to sit on the high court.

After inducing Kagan to say that her "political views are generally progressive," Graham said:

"There's no harm in that, and that makes the hearings a little more interesting. I would be shocked if President Obama did not pick someone that shared his general view of the law and life, and so elections have consequences. And one of the consequences is - a president gets to fill a nomination for Supreme Court."

Graham's argument along similar lines on behalf of Sotomayor last July drew widespread praise from legal and political commentators. He was the only Republican member of the Senate Judiciary Committee to vote to confirm her.

In the Senate's 68-31 vote to confirm Sotomayor in August, Graham and eight other Republicans supported her. DeMint was among 31 GOP senators who opposed her.

Five months earlier, in March 2009, the Senate confirmed Kagan as solicitor general by the identical 68-31 vote. DeMint and 30 other Republican senators voted against her. Graham didn't vote because he was in South Carolina for a meeting, aides said.

In his opinion column Tuesday, DeMint also alluded to elections. He warned that Democrats will suffer in November at the polls if Kagan is confirmed as high court justice.

"Washington still isn't listening to the majority of voters who want less government," DeMint wrote. "Mr. Obama has nominated a Supreme Court justice who probably will give them more. In the end, it's up to the American people to preserve, protect and defend the Constitution when their elected officials and courts won't. This November, they're going to elect some new Republicans who will."

In the days after Obama's May 10 nomination of Kagan for the Supreme Court, it appeared that she would gain more Republican support than Sotomayor, partly because of her fairly tough stances on terrorism-related issues as solicitor general.

However, GOP opposition to Kagan has hardened in recent days. At the confirmation hearing Tuesday, she fended off efforts by other Republican senators to paint her as a liberal activist.

Several GOP senators criticized her decision to restrict military recruiting at Harvard Law School when she was its dean because of the Pentagon's policy banning gays and lesbians from serving openly.

"I feel like you mishandled that," said Sen. Jeff Sessions, an Alabama Republican. "I'm absolutely confident you did."