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.
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 Ã¢€” 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 Ã¢€” if not decisive Ã¢€” 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 Ã¢€” or the fact that his ascension to the court could tip its balance Ã¢€” 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:
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.