Ensign to vote against Kagan

WASHINGTON -- Elena Kagan might win confirmation to the Supreme Court, but Sen. John Ensign said Thursday she will not have his vote.

Ensign announced he will oppose Senate confirmation of Kagan, the solicitor general and President Barack Obama's choice for the highest court.

The decision by the conservative Nevada Republican came as little surprise. All but one Republican on the Senate Judiciary Committee voted against Kagan when she was recommended for confirmation on Tuesday.

Majority Leader Harry Reid of Nevada has said he will schedule a final vote on Kagan before senators leave for August recess. Most if not all Democrats are expected to vote for her with a small number of Republicans.

Ensign spent an hour and 15 minutes with Kagan in his office on Wednesday. He said she was "very intelligent and very engaging," but it became clear they differed on judicial philosophy.

"I don't feel comfortable enough with her view of the Constitution," Ensign said. "I wanted to see a more solid view of the Constitution."

Ensign believes the views of the Founding Fathers "need to be the heaviest weight" as justices consider cases, while Kagan "led me to the impression precedent (how courts had ruled in similar cases) was more important than what the founders intended."

In discussing the Second Amendment, Ensign maintained Kagan told him "she had never studied the history of the amendment. She said she had studied the scholarship of it but not the history of it. She had never read the writings of the founders" on the topic.

"To me, the Second Amendment is key to the rest of the Bill of Rights," Ensign said. "This is the Supreme Court she is asking to be on. These people should know much more about the founders than any member of Congress."

Ensign also said Kagan's handling of military recruiters while dean of Harvard Law School "was no small issue to me."

At Harvard, Kagan for a time in 2004 barred military recruiters from the school's Office of Career Services in a controversy over the Pentagon's "don't ask, don't tell" policy. Critics said the Pentagon policy violated Harvard's policy against sexual discrimination.

For that period, a student veterans group offered itself as a conduit for recruiters, and Kagan said at her confirmation hearing that the military "had full access to our students at all times."

"Although she thinks she provided access to the military, she dishonored the military," Ensign said. "It is not equal when you are not allowed to use the student services center. It was separate but unequal."

Contact Washington Bureau Chief Steve Tetreault at stetreault@stephensmedia.com or 202-783-1760.