Nebraska Sen. Ben Nelson Friday became the first Democrat to oppose Elena Kagan, President Barack Obama's Supreme Court nominee. But she picked up the support of New Hampshire Republican Sen. Judd Gregg.
Kagan, the solicitor general who's expected to easily win confirmation to the Supreme Court next week, now has the backing of five Republicans. Democrats control 59 Senate seats.
Nelson, in a statement Friday, said he would not agree to filibuster the nomination, but would vote against it.
"As a member of the bipartisan 'Gang of 14,' (a group of senators who formed a coalition several years ago) I will follow our agreement that judicial nominees should be filibustered only under extraordinary circumstances," Nelson said.
"If a cloture vote is held on the nomination of Elena Kagan to the U.S. Supreme Court, I am prepared to vote for cloture and oppose a filibuster because, in my view, this nominee deserves an up or down vote in the Senate," he added. Sixty votes are needed to stop a filibuster.
But, Nelson said, "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."
"The Senate's duty to provide advice and consent on Presidential nominations to the Supreme Court is one of its most significant constitutional responsibilities. Separate and distinct from its legislative function, the confirmation process requires the Senate to put aside politics and conduct a frank and evenhanded review of the nominee’s record, qualifications and demonstrated ability to apply the law in a fair and impartial manner.
"I have met personally with Solicitor General Elena Kagan, reviewed her record, and followed her testimony before the Senate Judiciary Committee. During this process, Ms. Kagan has pledged that she will exercise judicial restraint and decide each case that comes before her based on the law, with objectivity and without regard to her personal views. She also has served the American people under two different administrations and has a strong legal academic background. She is qualified to serve on the U.S. Supreme Court.
"Ms. Kagan and I may have different political philosophies, but I believe that the confirmation process should be based on qualifications, not ideological litmus tests or political affiliation. I will vote for her confirmation."