At least according to Mike Allen’s hypothetical Senate vote.
From today’s Playbook:
PLAYBOOK FORECAST: Elena Kagan will be confirmed with 65 votes — 3 fewer than Justice Sotomayor, and 4 more than Kagan got for solicitor general last year. Here’s the math, from someone smarter than us (we welcome your quibbles/rebuttals): For solicitor general, Kagan got 61 ayes and 31 nays. Safe to assume if you were one of the 31 Republicans voting nay then, you can’t vote aye this time? Probably. Of the 61 ayes, seven were Republicans: Collins, Snowe, Gregg, Hatch, Kyl, Lugar and Coburn. After conservatives flexed their muscles in Utah last weekend (the Bennett effect), it’s hard to see Coburn, Hatch or Kyl voting for her this time. So that would theoretically put her at 58. But Specter voted no, and could now be expected to vote yes. So that’s 59. Four Democrats missed the vote. Of these, Boxer, Klobuchar, and Murray would be yes votes. So that’s 62. The fourth missing Democrat was Kennedy. His successor, Brown, might be gettable. (Is the Massachusetts senator really going to vote against the Harvard Law dean?) So that’d be 63. And Franken was not seated yet last time, but would be a yes now. So 64. Three Republicans did not vote: Cochran, Ensign and Graham. Of these, Graham is gettable, but it would be tough to envision either of the other two Republicans voting for her. So that puts her at 65. That’s with every Democrat (including Ben Nelson) voting yes, as well as the two Maine-iacs, Scott Brown, Judd Gregg, Lugar and Graham. Roll call on Kagan for solicitor general.
David Kirkpatrick 
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