WASHINGTON — It wasn't abortion-related memos or military recruiters at Harvard that sank Elena Kagan with Sen. Ben Nelson.
It was guns.
“She's already made statements ... and has written things that would show a bias against the Second Amendment,” Nelson told The World-Herald.
The Nebraskan recently became the Senate's first Democrat to announce that he would vote against Kagan's nomination to the U.S. Supreme Court.
The last time a Democrat voted against a Supreme Court nominee by a president of his own party was 1968, when Lyndon B. Johnson nominated Abe Fortas as chief justice. Granted, Democratic presidents have nominated only three justices since.
The Senate is expected to vote Thursday to confirm Kagan.
Nelson on Tuesday reiterated his pledge not to filibuster her confirmation, in accordance with his 2005 agreement as part of a group of Senate moderates called the “Gang of 14.” Those senators agreed not to filibuster judicial appointments short of “extraordinary circumstances.” Republicans do not expect to filibuster the nomination, either.
Nelson said Kagan is qualified and deserving of an up-or-down vote — but he is voting down.
Kagan's past statements about gun rights raised concerns in his mind and among Nebraskans that are difficult to dispel without a judicial track record, Nelson said. He cited the following:
ŸKagan wrote a note during her time in the Clinton White House that referred jointly to the Ku Klux Klan and the National Rifle Association as “bad-guy” organizations.
ŸShe wrote a memo during her service as a clerk to Supreme Court Justice Thurgood Marshall that she was “not sympathetic” toward a man challenging the constitutionality of Washington, D.C.'s gun ban.
ŸShe advocated for stronger gun control while an aide to President Bill Clinton.
“This gets right down to the nitty-gritty of a constitutional right that I think a number of people have been very concerned about, including myself,” Nelson said.
Kagan was asked about those points during her hearings.
Regarding the NRA-KKK note, Kagan said she wrote it while on a phone call. Although she didn't recall the particular conversation, she said she would simply have been writing down what the person on the other end of the line was telling her.
She rejected lumping the two groups into the same category.
“It would be a ludicrous comparison,” she told the senators.
Kagan said that the Clinton administration was working to keep guns out of the hands of criminals and that she considered the Supreme Court's 2008 decision to overturn the D.C. gun ban “settled law.”
Nelson said he thought she responded well, but it wasn't enough.
“I thought she gave a great answer,” he said. “But I think you counterbalance that with what she has said previously.”
Kagan has never been a judge, which means there is no trail of decisions to examine for evidence of how she might rule as a member of the high court.
Nelson said that has made it difficult for him to get comfortable with the nomination.
“When you can't go back to the people in Nebraska and say, ‘I believe that, based on a judicial record, that this nominee will vote this way,' it makes it extremely challenging to try to quell the concerns,” he said.
Nelson voted last year to confirm President Barack Obama's first Supreme Court nominee, Sonia Sotomayor. But Sotomayor had a judicial record, Nelson said.
Jim Manley, a spokesman for Senate Majority Leader Harry Reid, expressed no frustration Tuesday with Nelson's plan to oppose Kagan, saying the Nebraska senator knows best how to represent his constituents and get re-elected.
Manley said Reid, D-Nev., believes that “folks gotta do what they gotta do to come back.”
Contact the writer:
202-662-7270, joe.morton@owh.com
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