Here's the problem: about 30, maybe as many as 35, Republican Senators are going to oppose confirming Elena Kagan to a seat on the Supreme Court. And, alas for them, they have to explain why they're doing so. Uh oh!
Why is it a problem? Well, why are they actually voting against her? There are two sorts of answers, both correct. One is simply that she's a liberal, and they're conservatives. The other is the Bob Bennett answer: they're scared for their careers, believing that a single "liberal" vote could wind up producing a primary challenge from true believers. That's a problem because you're not allowed (by the norms of political discourse) to say that you're voting against a Supreme Court nominee because you're afraid of those crazy Tea Party nuts -- and because many Republican Senators had loudly proclaimed under different circumstances that one should not oppose a nominee simply on ideological grounds. Moreover, because Elena Kagan is such a blank slate, there are no real obvious ways to claim that she's "out of the mainstream," which everyone agrees is a legitimate reason to oppose a nominee.
So either they're going to have to just say that she's a liberal, they're conservatives, and that's that...or, they're going to have to manufacture reasons. I think the former is by far the better course; I think that the norm against such explanations is mostly foolish. However, I think we're going to get far more of the latter: "I'm want to vote for the president's nominees, but this one is so extreme because..." And I do expect whatever they come up with to finish that sentence has a high probability of being amusing. Just remember: what's really going on here is a combination of simple ideological disagreement, along with extreme fear of being labeled a RINO. Most likely scenario: over the next couple of weeks, someone finds something new in the document and email dump that can be twisted out of context to prove she's a monster, and it becomes a mini-flap on the talk shows, giving GOP Senators a good hook on which to hang their "no" votes.
I see that Orrin Hatch has declared himself a "no." I think I'll go out on a limb and make a prediction: 36 "no" votes, or five more than against Sonya Sotomayor. Republicans supporting Sotomayor were Alexander, Bond, Collins, Graham, Gregg, Lugar, Mel Martinez, Snowe, and Voinovich. Martinez is gone, with LeMieux and Brown added to the conference, so I'm saying that all 31 will stick, plus five of the group of ten will flip. And I'll say that the most likely flipper in the other direction, no on Sotomayor but yes on Kagan, is Bob Bennett.
No idea whether they'll force a cloture vote or not. They're behaving as if they believe there's something at stake in being able to deny that they're filibustering, but on the other hand there's definitely going to be pressure from conservative groups to fight hard against Kagan. As I've said, I think Harry Reid should go ahead and file a cloture petition and force a vote anyway.