An Alito Filibuster?
John McIntyre at RealClearPolitics says the Democrats HAVE to filibuster Alito, essentially, to maintain their standing with the base:
Initially, I thought a filibuster would be very unwise for the Democrats because it would gin up the Republican base and it was a fight that they at the end of the day simply don’t have the cards to win. However, Democrats want to keep their based fired up and they want to display a willingness to confront Bush and the GOP. A rerun of the Roberts hearings ending with a 58-42 vote for Alito (as opposed to 78-22 for Roberts) is nothing but a loser to their base and a huge conservative victory. The 5-4 majority conservative decisions Alito will be part of for the next 25-30 years won’t contain an asterisk at the bottom saying he only received 55 votes in the Senate.
Even though the odds are that a sustained filibuster would be met with a change in the Senate rules and Alito’s ultimate confirmation, an argument can be made that strategically it is good political move for the Democrats. If Reid can hold 40 votes and sustain a filibuster (a big if), Democrats would throw down the gauntlet to the GOP. While I think Frist has the votes today to ram though the “nuclear” option, there’s always a chance Democrats get lucky and find three GOP Senators (Warner, Specter, and McCain, perhaps) to join Snowe, Collins and Chafee in refusing to change the Senate rules.
Win or lose, a filibuster would energize the Democrats’ base, and even if they fail to stop Alito’s confirmation….how much have they really lost? They could say correctly that Alito was going to get through anyway. They would lose their ability to dangle the filibuster threat for the rest of the Bush term in respect to judicial nominees, but the potency of that weapon has already been significantly reduced. In the previous three years they already have maxed out what was politically acceptable with filibuster tactics on judicial nominations before the GOP leadership finally got serious about fighting back this spring. So if the Senate rule on filibusters did get changed, while Republicans may like it now, I suspect it is a rule change the GOP would come to regret.
Well, I certainly agree with that last bit…but I’m not certain I agree with the larger premise.
Yes, the filibuster would fire up the base – but it would turn off vast amounts of potential Democratic voters in the center if it is offered up as merely a partisan move without a solid, realistic reason – and I just don’t think Samuel Alito is going to provide that reason…
What is the gang of 14 saying? Alito is hardly an “extreme” nominee – despite the protestations of the extreme wing of the Democrat party (EMK). That said, choosing to filibuster is a low risk strategy for the Democrats, even for those that face an election this year. I find that most people I know look at filibusters as sort-of “inside baseball” stuff – interparty warfare that is of minimal consequence to them and their daily lives. Especially if the filibuster is expected to be defeated. Kind of like letting a Rep or Senator vote their “conscience” for or against a bill for which the outcome is already known.
I am not convinced by Republican “threats” of the nuclear option. As someone who has been involved in politics for at least thirty years, I have yet to see concrete evidence that the Republican leadership has the balls and will necessary to pull this particular trigger. I would be more surprised if they changed Senate Rules to end the filibuster than I would be if they wimped out when faced with this “difficult” choice. We read a lot about Democratic subterfuge, and the MSM’s complicity in their actions. However, what is said less often is that Republicans allow a lot of this subterfuge to take place without strong counteraction, without broad public explanation and condemnation, and with a demonstrable lack of conviction about Republican and conservative principles. I have serious doubts whether this situation would be any different.
Since we’re talking a Supreme Court nomination here, I think if the Democrats threaten to filibuster, the Republicans should let them–the old fashioned way. Bring in the cots, read from the cookbooks. That’s the only way that citizens/voters are going to see this for what it is…our tax dollars wasted to placate an extreme wing of one political party.
I more or less agree with the thesis of the argument, mainly because I think the Gang of 14 deal was a good deal for Republicans, and not particularly good for Democrats. It provides the Republicans with something of an automatic stamp of approval, since now the onus is on the Democrats to prove a particular nominee is outside the mainstream. Getting rid of that deal wouldn’t hurt Democrats much – they can’t get much more impotent, and those already in office would have the thanks and votes of the most rabid voters – and it might help them, at least in terms of getting people’s attention.
I think it would be a crying shame for the country, however, especially since it seems the “mainstream” talk pretty much comes down to abortion and nothing more. Presumably the court will take up a lot of different topics while he’s on the bench, and it would be nice to talk about something other than trimesters.
Two thoughts…
re: “5-4 majority conservative decisions Alito will be part of“…
It’s worth noting that we’re really just replacing a Court where O’Connor often cast the deciding vote with one on which Kennedy will often cast the deciding vote. Certainly Justice Kennedy will be to the right of Justice O’Connor on some issues — but he’s also to the left on others. See, for example, the most controversial decision since Lawrence v. Texas — Kelo v. New London. In that case, it was Justice Kennedy, not Justice O’Connor, who broke with the conservatives and voted to gut our property rights. And assuming Judge Alito is confirmed, and that he and Judge Roberts both fall on the conservative (pro-private property) side of Kelo, the liberals still win 5-4 — we haven’t gained any ground at all on issues like this one, and probably won’t until Justice Stevens steps down, some day. On issues of sexual privacy, Justice Kennedy will similarly be a fifth vote supporting abortion rights, gay rights, and such, and probably part of an even larger majority opposing Justice Scalia’s desire to outlaw masturbation. Alito’s confirmation will undoubtedly move the Court to the right, but let’s not exaggerate the extent of that movement… in other words, Chill!
Which brings up my second thought… re: a Republican will to override a Democratic filibuster of Alito. Others here paid more attention to the “Gang of 14″ than I did, but the main point I took from the whole affair was this: assuming the other 86 senators are likely to vote their party line, if three of the seven democrats in the Gang agree to filibuster, there will be a filibuster and on the flip side if two of the seven republicans in the Gang agree to the “nuclear option” it will be invoked (if it’s only two, then Cheney will have to cast the deciding vote). So one important detail to consider is that Senator Graham, one of the Republican “Gang,” has already stated unequivocally that he would support the “nuclear option” if Democrats filibuster Alito — even before the hearings have gotten started. (yahoo, hat tip: AE) In the unlikely event that Democrats do manage to put together a filibuster on this, it seems likely that at least one more of the “Gang” would join Senator Graham. (If I had to guess, Senator McCain who is currently trying to convince the GOP’s right that he’s not too liberal for them would take great delight in the opportunity to announce himself as the fiftieth vote…)
(Just in passing, Governor Whitman just referred to Sam Alito as “President Alito” — presumably a slip of the tongue.)
I’ve already heard that Robert Byrd and another Democrat (who escapes me at the moment) have already ruled out voting for a filibuster. Maybe it was Ken Salazar. Anyway, if the Dems aren’t in lockstep on a filibuster, it won’t materialize.
A filibuster ain’t gonna happen — the Dems will make a short and noisy fuss and the nomination will pass, so the topic of conversation returns to Abramoff, Iraq, the deficit…