Legal Commentary

One Democrat to Oppose Kagan

By Jonathan H. Adler

Senator Ben Nelson (D-NE) has announced he will vote against confirmation of Elena Kagan to the Supreme Court.  He is the first Democrat to come out against her.

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.

It won?t make a difference, however, as five Republicans (Snowe, Collins, Lugar, Graham, and Gregg) have announced their intention to vote in favor of her confirmation.

Full post as published by The Volokh Conspiracy on July 30, 2010 (boomark / email).