Filibuster Dilemma

To filibuster or not to filibuster? That is the question that Senate Democrats may have to ask themselves about the nomination of Judge Samuel Alito.

Leaving aside the filibuster question, there is little doubt that Alito will have a tougher time than John Roberts but that his troubles will owe more to the political situation in the Senate than to his own qualifications.

Judge Alito is the anti-Harriet Miers. Where she had little experience in matters of public law, he has experience in spades: 15 years on the 3rd U.S. Circuit Court, arguing cases before the Supreme Court in the solicitor general’s office, a stint as a U.S. attorney and an Ivy League pedigree.

Alito is conservative, but not an ideologue or a movement conservative. He has not spent his years making speeches, railing against liberal jurisprudence or peppering his opinions with vitriol, ad hominem attacks and inflammatory rhetoric. His temperament is judicial, and his demeanor humane.

Qualification and temperament aside, Alito will be controversial for several reasons. Unlike Roberts, he is slated to fill the seat of a swing vote on the court and his confirmation will move the court to the right. Many Democrats who voted for Roberts will feel pressure to vote against a second Bush nominee. It is much easier to tell interest groups and voters at home that Roberts was a special case and that they voted at least once to prevent a more conservative Supreme Court.

Advocacy groups on both sides have geared up for this fight for years. The Roberts nomination was a muted version of the conflict, and the Miers nomination confused matters by generating opposition from conservatives. The groups will see the Alito nomination as the battle royal that they were hoping for, and they will spend their considerable war chests on public campaigns for and against Alito. Finally, Alito’s judicial experience is a double-edged sword--on the one hand proof of competency, and on the other hand a paper trail that will be picked over during the hearings.

At the end of the hearings, Senate Democrats may find that they are able to assemble 41 votes against Alito (22 Democrats voted against Roberts). With the possible exception of Sen. Lincoln Chafee of Rhode Island and perhaps Sens. Olympia Snowe and Susan Collins of Maine, Republicans will be unified in their support. A straight up-or-down vote will put Alito on the court.

The two key questions will be: Will Democrats have the stomach for a filibuster fight? And can they win? The answers: maybe and no.

There will clearly be strong voices in the party who argue for the filibuster strategy, but it is a tough call as to whether they will cross the filibuster Rubicon. One factor they will consider is the prospect for successfully upholding the filibuster, which is small.

The filibuster deal made this summer was based on the mutual trust of the 14 senators who were party to it. Republicans agreed not to vote for the nuclear/constitutional option to abolish the filibuster for judicial nominations, and Democrats agreed not to use the filibuster except in “extraordinary circumstances.” Key Republican Sens. Lindsey Graham of South Carolina and Mike DeWine of Ohio have already indicated that they do not believe that ideological opposition to a Supreme Court nominee is “extraordinary.” They and other Republicans will vote to abolish the filibuster if it comes to that.

Whatever the twists and turns of the confirmation process, Judge Alito, the qualified and conservative Supreme Court nominee, will likely be caught up in a battle that is about issues much larger than his own fitness to serve on the court.

John C. Fortier is a research fellow at AEI.

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