Sen. Ben Nelson, of Cornhusker Kickback fame, has announced that he will vote against confirming Elena Kagan to the Supreme Court. There are good reasons to vote that way, but Nelson has trouble articulating them. His position seems to be “some of my friends are against her and I’m for my friends”:
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. Therefore, I will not vote to confirm Ms. Kagan’s nomination.
Nelson’s “no” vote won’t sink Kagan. He has made it clear he will not filibuster the nomination. Moreover, five Republican Senators have already said they favor confirming Kagan, so even if Nelson were willing to filibuster, it wouldn’t matter. The five Republicans are Sens. Snowe, Collins, Gregg, Lugar, and of course Lindsey Graham.
Nelson’s vote is not entirely meaningless, though. Nelson is up for re-election in two years and, as his reference to “concerns from Nebraskans” suggests, his position on Kagan probably reflects the views of his state’s voters on this nomination. In other words, Kagan didn’t play well in the heartland.
Moreover, her nomination will probably play less well now that a Democrat has broken ranks. As Josh Gerstein notes, the White House “had hoped to keep all Democrats on board for the vote on Kagan.” Its failure to do so will fuel the perception that President Obama made a poor selection. Consequently, as professor Adam Winkler predicted, “the President will have lost some of the confidence of the electorate that is so precious to him now.”