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 Barack Obama.
On the second day of Elena Kagan's confirmation hearings, the South Carolina Republicans indicated they'll likely cancel each other's votes when the full Senate takes up her nomination to the high court.
Graham, a military lawyer, 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 view, that (in) this area of your legal life, you represented the United States well," Graham told Kagan at a Senate Judiciary Committee session.
Joining Sen. Jim Inhofe of Oklahoma, DeMint became the second GOP senator to say publicly that he'll vote against Kagan in an 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 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 two senators parted paths in August when Graham voted to confirm Sonia Sotomayor, Obama's first high court nominee, and DeMint voted against her.
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 March 2009, the Senate confirmed Kagan as solicitor general by a 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 the Senate's identical 68-31 vote to confirm Sotomayor in August, Graham and eight other Republicans supported her. DeMint was among 31 GOP senators who opposed her.
Kagan was expected to get more Republican votes than Sotomayor did, but in recent days the GOP has hardened its opposition to her nomination.
Graham's aides insisted that he hadn't made up his mind on Kagan, but their exchanges Tuesday were filled with good-natured banter.
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 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 appeared reluctant to repeat her criticism, Graham teased 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."
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