Sen. Ben Nelson is first Democrat to oppose Kagan


WASHINGTON — Supreme Court nominee Elena Kagan saw the first crack Friday in a so-far solid base of Democratic support for her virtually certain confirmation next week, when centrist Sen. Ben Nelson said he would vote “no.”

The Nebraska Democrat said he’d heard concerns from his constituents about President Barack Obama’s nominee, and that her lack of a judicial record made it impossible to dismiss them.

His announcement in a brief statement released late Friday came on the same day that a fifth Republican, retiring Sen. Judd Gregg of New Hampshire, said he would break with his party and support Kagan.

The Senate is expected to vote next week on Kagan’s nomination, and Democrats have more than enough votes to confirm her. The 50-year-old solicitor general and former Harvard Law School dean is in line to succeed retired Justice John Paul Stevens and become the fourth woman on the high court.

Nelson’s decision marks the first time a Democrat has crossed Obama over a Supreme Court nominee. The president’s first pick for the high court, Justice Sonia Sotomayor, won unanimous Democratic support — plus backing from nine Republicans — when the Senate confirmed her last year.

Nelson waited until late in the process to decide whether to back Sotomayor. This time, he said he wasn’t comfortable giving Kagan the benefit of the doubt.

“(I) have heard concerns from Nebraskans regarding Ms. Kagan, and her lack of a judicial record makes it difficult for me to discount the concerns raised by Nebraskans, or to reach a level of comfort that these concerns are unfounded,” Nelson said. He didn’t outline what those worries were.

Republicans and conservative groups, recognizing that they don’t have the votes to defeat Obama’s nominee, have sought to at least make it a politically tough decision for Democrats like Nelson who represent conservative states. Sen. Jeff Sessions of Alabama, the top Republican on the Judiciary Committee, cautioned Democrats this week in a Senate speech to “be careful” about backing Kagan, calling her “dangerous” and warning that voters might not forgive her supporters.

And the National Rifle Association, which wields outsized influence in states like Nebraska, is opposing Kagan, calling her hostile to gun rights and promising to punish senators who vote “yes” in candidate ratings it circulates to millions of gun-owning voters.

Nelson faces re-election in 2012.

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