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Graham only GOP senator on panel to vote for Kagan

WASHINGTON — Sen. Lindsey Graham on Tuesday was the only Republican on the Senate Judiciary Committee to vote to confirm Elena Kagan for the Supreme Court, breaking ranks for the second time in a year on a high court pick by President Barack Obama.

Before the judiciary panel's 13-6 vote for Kagan, Graham, a second-term South Carolina Republican, gave a lengthy — more than 15 minutes — and unusually personal account of why he supports her nomination.

Graham, a military lawyer, described the year he spent traveling the country and campaigning with Sen. John McCain, a close friend, to support the Arizona Republican's 2008 bid for the presidency.

"No one spent more time trying to beat President Obama than I did, except maybe Senator McCain," Graham said. "I missed my own election. I voted absentee. But I understood we lost, President Obama won, and I've got a lot of opportunity to disagree with him."

"But the Constitution in my view puts a requirement on me as a senator to not replace my judgment for his — not to think of the 100 reasons I would pick somebody differently or pick a fight with Ms. Kagan," he said.

Graham also praised Kagan's work on terrorism issues as solicitor general, who represents the federal government in cases before the Supreme Court.

Graham's committee vote for Kagan enabled Obama to claim bipartisan support for her.

"Today's vote by the Senate Judiciary Committee is a bipartisan affirmation of her strong performance during her confirmation hearings," Obama said.

Graham's committee support of Kagan also makes it all but certain that he and fellow South Carolina Republican Sen. Jim DeMint will part paths in the full Senate's confirmation vote expected before lawmakers' summer recess next month.

Even as Graham defended the president's right to choose a Supreme Court nominee who reflects his political beliefs, the senator criticized Obama for having voted against President George W. Bush's nomination of John Roberts to be the court's chief justice when he was a senator in 2005.

Graham cited Obama's now famous explanation that in "5 percent of hard cases" before the Supreme Court, neither the Constitution nor legal precedent determines a justice's decision, but rather "the critical ingredient is supplied by what is in the judge's heart."

Graham said: "Senator Obama was part of the problem, not the solution."

Sen. Richard Durbin of Illinois, the No. 2 Senate Democrat, said Graham's comments had made him rethink his 2003 opposition to Miguel Estrada for a federal appellate judgeship.

Democrats blocked President George W. Bush's nomination of Estrada, a Harvard Law School classmate of Kagan who supported Obama's choice of her for the high court.

"I reflected on some of the things that I have said and how I have voted in the past, and thought that perhaps (Graham's) statement suggested a better course," Durbin said.

Durbin praised Graham as "an extraordinary senator" and one "who not only has a thoughtful way of looking at these important decisions, but putting them in a perspective which few members can."

The committee confirmed Kagan almost a year after it approved Sonia Sotomayor for the high court, with Graham the only Republican backing her in an identical 13-6 vote.

Graham on Tuesday echoed his arguments of last year — which drew accolades from editorial writers across the country — in saying that Obama's decisive 2008 election gave him a constitutional right to nominate ideologically compatible justices.

"While it is our responsibility to challenge the court, to scrutinize the court, to put the nominee to a test, it is also our obligation to honor elections, respect elections and to protect the court," Graham said.

"I view my role as a United States senator in part protecting the independence of the judiciary and making sure that hard-fought elections have meaning in terms of their results within our Constitution," he said.

In a dig at GOP colleagues who might be assessing Kagan based on her political beliefs, Graham said: "Are we taking the language of the Constitution that stood the test of time and basically putting a political standard in the place of a constitutional standard? ... Objectively speaking, things are changing, and they're unnerving to me."

Graham's committee vote Tuesday will provide more ammunition to some conservative activists who've long attacked him for backing immigration reforms and taking other stances at odds with conservative orthodoxy.

While DeMint had no Republican primary opposition last month, Graham faced Lexington orthodontist Buddy Witherspoon in his first Senate re-election campaign two years ago. Graham defeated Witherspoon by a 67-33 percent margin and easily bested Democrat Bob Conley in the November general election.

Graham aides said his 2012 election prospects had no bearing on his decision about Kagan.

"In four years Barack Obama went from being an Illinois state senator to becoming president of the United States," said Kevin Bishop, a Graham spokesman. "Who knows what the political landscape will look like four years from now?"

(Michael Doyle of the Washington Bureau contributed.)

To view Sen. Graham's comments on Kagan: http://tinyurl.com/24yamoj

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