Alito, the Nuclear Option, and the Gang of 14

Yesterday’s shutdown of the Senate by the Democrats would seem to signal that they are ready to use all the tricks at their disposal to prevent the Republicans from exercising the power that comes with majority status. This, obviously, leads to speculation about a filibuster of Samuel Alito’s nomination to the Supreme Court.

Filibuster Option Is in the Democrats’ Arsenal (LAT)

Democrats began gearing up Monday for a high-stakes fight over federal appellate Judge Samuel A. Alito Jr.’s nomination to the Supreme Court but stopped short of threatening to filibuster President Bush’s pick. Democrats and Republicans predicted that Alito’s fate would probably be decided by the so-called Gang of 14 — senators from both parties who cobbled together a compromise in May that averted a showdown over judicial nominees. “There is a potential for the Gang of 14 to perform a pivotal — if not decisive — role,” Sen. John W. Warner (R-Va.), a member of the group, said in a statement supporting the nomination.

Privately, senior Democratic staff members doubted that the seven moderate Democrats in the Gang of 14 would consider Alito’s strongly conservative record — or the fact that his ascension to the court could tip its balance — as the sort of extraordinary circumstances that would allow them to support a filibuster. “I don’t think Democrats are going to say filibuster unless they are sure they want to filibuster and they have the votes,” said a senior Senate Democratic aide, speaking on condition of anonymity because of the political sensitivity of the issue.

Indeed, it seems unlikely:

Democrats Signal Hesitance to Use Filibuster Against Alito (Bloomberg)

Moderate U.S. Senate Democrats said they want to know more about Supreme Court nominee Samuel Alito Jr.’s judicial philosophy and signaled reluctance to support a filibuster to block his confirmation. “There is no question the judge is a conservative,” said South Dakota Democrat Tim Johnson, who voted in September to confirm Chief Justice John G. Roberts Jr. The issue is “whether his conservatism falls within the broad mainstream of contemporary jurisprudence and whether it is beyond the bounds,” Johnson said after meeting with Alito in Washington.

Democrats who signed a bipartisan agreement that averted a Senate crisis over the use of the filibuster to block judicial nominees said they hadn’t heard talk in the group of using the parliamentary tactic that allows unlimited debate. The seven Democrats who signed the May 23 agreement pledged not to support a judicial filibuster except in “extraordinary circumstances.” “I haven’t heard any of my colleagues on the Democratic side talk about extraordinary circumstances,” Nebraska Democrat Ben Nelson told reporters. “The question hasn’t even been raised.” Still, Nelson wouldn’t rule out supporting such a tactic if any facts about Alito emerge to justify its use.

Arkansas Democrat Mark Pryor, another signer of the agreement, declined to speculate about whether the nomination would give rise to a filibuster. Still, Pryor said, “I start with the presumption that there are no extraordinary circumstances.”

Alito nomination to test ‘Gang of 14’ (Washington Times)

Senate Republicans said yesterday they will use the “nuclear option” to ban judicial filibusters if Democrats try using the tactic to block the confirmation of Judge Samuel A. Alito Jr. to the Supreme Court. “Certainly, this does not rise to the level of extraordinary circumstances,” said Sen. Mike DeWine, Ohio Republican. “Therefore, I would be prepared — if a filibuster were tried — to go to change the rules in the Senate to stop the filibuster.”

Mr. DeWine is a member of the “Gang of 14” senators who can determine whether a filibuster can succeed or whether the “nuclear option” can be deployed to break one. After meeting with Judge Alito for more than an hour yesterday, Mr. DeWine said the federal judge is in the “mainstream” of conservative judicial thinking and doubts that Democrats in the “Gang of 14” will permit a filibuster. Under terms set by the Gang of 14, the seven Democrats promised not to back filibusters except under “extraordinary circumstances” and the seven Republicans vowed not to invoke the “nuclear option” unless Democrats abuse the filibuster.

Yesterday, Judge Alito had five private meetings with senators on Capitol Hill, drawing praise from Republicans and at least qualified praise from Sen. Tim Johnson, a Democrat from conservative South Dakota. “From what I know at this point, it would appear that his 15 years on the federal bench, his experience, his legal skills are at a high level,” said Mr. Johnson, who said he hasn’t made up his mind about whether to support the nomination or seek a filibuster.

No Democrat has called for a filibuster against Judge Alito, but several have declined pointedly to rule out such a tactic to keep him off the high court. Most Republicans have said they support using the “nuclear option” to break any new filibusters against judicial nominees such as Judge Alito. But for Republicans to ban judicial filibusters, they need the support of at least three Republicans in the Gang of 14.

Four Republicans and two Democrats have found no “extraordinary circumstances” with the Alito nomination. Although that number is not enough to prevent Democrats from filibustering the nomination, it is enough to employ the nuclear option. Sen. John W. Warner, Virginia Republican, declined to comment yesterday on whether Judge Alito’s nomination amounts to “extraordinary circumstances,” except to say that he is “strongly supportive of this nomination, based on what I know.” Sen. Ben Nelson, Nebraska Democrat, said he isn’t aware of any “extraordinary circumstances” and has “not heard any of my Democratic colleagues in the Gang of 14 talk about using the f-word, filibuster.” Sen. Mark Pryor, Arkansas Democrat and Gang of 14 member, said yesterday that he was not aware of any reasons to filibuster Judge Alito. “I certainly start with the presumption that there are no extraordinary circumstances,” he said. “Now, it’s very early, and maybe in my mind those could present themselves. I certainly hope that they would not in this nomination.”

Sen. Susan Collins, Maine Republican and another group member, was largely positive about the nomination despite her “troubling concerns” about Judge Alito’s dissent in a 1991 case in which he said it was not an “undue burden” for a woman to notify her husband before an abortion. “I do not yet see a basis for invoking extraordinary circumstances,” she said. “He clearly has the legal credentials, the professional excellence and the integrity required of a Supreme Court Justice.”

Hugh Hewitt observes, “MSM accounts of the coming debate that credit the idea of a threat of filibuster will be incomplete and thus lousy reporting if they do not include this obvious fact: The GOP is pledged to get an up-or-down vote on the nominee, and they have the votes to do it. Democratic Senators may well respond with gimmicks like yesterday’s antics, but they are diminshed by such things.”

Steve Bainbridge has a different take: “Harry Ried’s stunt [yester]day likely was at least as much about sending a warning shot re the nuclear (a.k.a. constitiutional) option as WMDs? A signal that he can tie up the Senate in retaliation for elimination of the judicial nomination filibuster.”

This makes a lot of sense, really. Reid must know that Alito is likely to be confirmed, even if it comes at the expense of the filibuster. But he has shown that the Republicans will have to change a lot more rules than just unlimited debate to get their way on controversial issues.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. SoloD says:

    How was this a dirty trick? It was by the book. It may have been a “stunt”, but then so are most of the times that the national security level was raised in 2004. And if it was a stunt, it was a sucsessful stunt — but hardly a dirty trick. If the GOP leaders can’t play in the same league, then its time to get new leaders.

  2. Herb says:

    I hope the Dems do go for the filibuster, then the Reps can exercise the Nuclesr Option and put an end to whatever power the Dems have left.

    The diehard, sore loser Dems had best “Get over it” and recognize that the American people have “had it” with their nonsense and dirty tricks.

    But then again, the Dems didn’t learn a thing in 2000 and 2004 and it looks like they will not learn in 2006 and 2008.

    The Dems would do best to rid themselves of Dean, Schumer, Kennedy, Leahy, Reid and the rest of the extremists, then maybe they just may have a chance.

  3. McGehee says:

    Solo, don’t feed the trolls. 😉

  4. Barry says:

    James Joyner:
    “…all the tricks at their disposal to prevent the Republicans from exercising the power that comes with majority status. ”

    When I was an undergraduate, in a third-tier university, everybody was required to take Poli Sci 101, which was basically high school civics. Which covered things like the differences between the Senate and the House. To simplify it a bit, in the House, 50% + 1 vote rules utterly; in the Senate, the minority has far more power. That’s the way that it’s been for over 200 years.

    James, perhaps you could sit in on such a course at a university near you, and learn such things.

  5. Blue State Separatist says:

    … the Republicans will have to change a lot more rules than just unlimited debate to get their way on controversial issues…

    The repugs would gladly impose martial law to get their way, throw their opponents in jail, and torture them.

    They got their abuse of power shoved down their throat yesterday, thanks to an obscure little Senate rule. Amazing how the bullies whine when the victims suddenly fight back. It was a real pleasure to see Frist the jackass squealing like a cornered rat.

  6. Wayne says:

    Basic Political Science classes are like any basic level classes. They teach a dumb down version of the subject and leave out great deal of information as well as stating many facts as absolutes that are not. The Senate has given the minority party more power because they have chosen to do so. Most of its rules have not been around for 200 years but are in constant change. For example in1919: First use of Rule 22 when Senate invoked cloture to end debate against the Treaty of Versailles was established. The Senate use to be considered the more civilized and friendly than the House. Now they have shown their true colors.

  7. Barry says:

    Wayne, my point was that a big difference between the House and the Senate (maybe the biggest one) was that in the Senate, a strong minority has some power. In the House, a strong minority has jack. There have been some variations, but it’s always been that way.

    Nuking the fillibuster is an attempt to run the Senate on House rules, otherwise known as ‘the minority can STFU’.

    Regarding James, I was pointing out that he was being dishonest in his comment ‘… they are ready to use all the tricks at their disposal to prevent the Republicans from exercising the power that comes with majority status.’, because of that difference. I was trying to do so in a reasonably subtle way.

  8. ken says:

    If it is determined that Alito is not a suitable candidate for the Supreme Court why should the Democrats not filibuster his appointment? Is America supposed to accept whatever Bush decides regardless of how mistaken he is?

    I really don’t understand why conservatives are so unwilling to put the common interest above the political battle de jeur. Every time you win one of these battles the country loses.

  9. John Gillnitz says:

    I seriously doubt the Dems will pull a filibuster. A) They don’t have the numbers to pull it off and B) Alito doesn’t seem that bad.

    Reid’s closed session was surely a stunt, but it was a stunt to get the Republicans in the Senate Intelligence Committee to do their jobs. They stopped cooperating and got lawyered up back in July. I wonder why…

  10. Jon says:

    Something to consider:

    Special rights for gays? Weakening the CIA? Does he still seem like the home run we were promised?

  11. RA says:

    The Democrats showing the strength of their new campaign strategy. “We can obstruct the business of the senate better than anyone”. I think its great. It is not often the American public can see the clearly announced agenda of the left. Most of the time their agenda is couched in lies.

    Let them be the party of obstruction and nothing more. Say good by to all those red state Democratic senators.

  12. anjin-san says:

    Fine get rid of the filabuster. Three more years of Bush and the GOP will be a minority party. And they will have one less card in the deck.

  13. drmagoo says:

    1) Oh, no! Alito might not be the most perfect hardcore conservative ever! Should we work on cloning Hitler so that we can be sure that nominees don’t accidentally treat gays as human or assume that people have any rights at all?

    2) This assumption (by some) that the minority shouldn’t have some significant power is remarkably short-sighted and greedy. It ignores, first of all, that the guiding principles of law in the Constitution are not that “majority rules”, but that the rights of the individual, even unpopular ones, trump the rights of the majority and of the state. Secondly, it treats the system as one which willingly invalidates the opinions of half the country (or thereabouts), and that’s downright silly. And thirdly, even the most hardcore Republican has to acknowledge that someday (please, please, please let it be 2006) they won’t be the majority party – and when they are the minority, do they want to have any say in what happens, or would they be willing to sit there quietly while the Democrats do anything they want? Of course not. So don’t assume that it’s fair one way if you wouldn’t like it if the situation were reversed.

  14. DL says:

    “If it is determined that Alito is not a suitable candidate for the Supreme Court why should the Democrats not filibuster his appointment? Is America supposed to accept whatever Bush decides regardless of how mistaken he is?

    Actually it was America that decided when they put him back into office, or haven’t you figured that out yet. Obstructing America’s will is about all you guys can do. I’ll admit you’re good at it! Obstructing that is.

    Ken you gave me the best laugh since they “found” St. Hillary’s missing files, by writting the following…

    “I really don’t understand why conservatives are so unwilling to put the common interest above the political battle de jeur. Every time you win one of these battles the country loses.

    ken ”

    Thanks for the big laugh!

  15. drmagoo says:

    Actually, DL, the job of the Senate (as representatives of their constituencies) is to reject any nominees that the President puts forth that are not appropriate, and they are supposed to use their individual judgements as to decide who to support and who not to. The long-held rules allow for minority groups to be able to significantly affect the process through things like the filibuster, etc. And as for what “America’s Will” is, I could point to numerous data that show that what Bush wants, most of the country does not want right now. Since there isn’t a way to get him out of power, other than convicting him for being a murdering lying terrorist, the Senate can act on the “will” of the voters by telling him to take his extremist views and shove them down his throat. Respectfully, of course, as Dick Cheney would act on the Senate floor.

  16. joe says:

    The Democratic shut down accomplished 2 things. It got the Senate to agree to the second part of the investigation that they promised. And it got the president to show some of the courtesies in regards to Supreme Court Judge appointments which he neglected.

    I do not know why people like you persist in lying. The best that can happen is that you will succeed, that the population will go along with the myth that the ruling party is helpless victims and the traitors must be destroyed for a perfect world.

    But the reality is that you will simply lose your reputation. You will have put your name next to falsehood after falsehood and left a record.