Will Democrats Really Go to the Mat?

[[C O U R T S]] * Wasn’t it just last weekend that Senator Dianne Feinstein (D-California), speaking on CBS-TV’s Face the Nation, said that although she intends to vote against the nomination of Samuel A. Alito to the U.S. Supreme Court, she doesn’t expect her fellow Democrats to launch a filibuster against this third nominee to replace retiring Associate Justice Sandra Day O’Connor--and that she would likely not support such an effort, were it made? Hasn’t the Senate’s senior Democrat, Robert Byrd of West Virginia, already declared more than once that “There is not going to be any filibuster against Alito”? And haven’t more liberal columnists such as Newsweek’s Eleanor Clift cautioned Dems to refrain from picking this particular battle with George W. Bush, no matter how weakened the prez is by multiplying scandals and continuing bad news from Iraq? (“Rather than risk the filibuster in an unwinnable fight over Alito,” Clift has written, “Democrats should save it for when and if that awful day arrives when the most liberal member of the court, John Paul Stevens, 85, steps down while Bush is still president.”)

Yet just yesterday, Senator Dick Durbin (D-Illinois) told the Chicago Sun-Times that not only has he decided to oppose Alito’s confirmation, but that Senate Democrats “may have enough votes to sustain a filibuster against the conservative jurist.”

Durbin, the number-two ranking member of the Senate’s Democratic minority, says he opposes Alito because “in case after case, he has voted--often as the lone dissenter on his court--against the dispossessed, the poor, and the powerless who finally made their way to his court.” The solon added that he was dissatisfied during last week’s Senate confirmation hearings with Alito’s cautious, fuzzy responses to questions involving abortion and the limits of presidential power. But it was Durbin’s suggestion that Dems might in fact translate their displeasure with Alito’s ideology and judicial record into a knockdown brawl to stop the jurist’s ascension to the Supreme Court--something observers had previously thought unlikely--that drew the most attention.

The possibility of a filibuster seemed to surprise even Durbin, who as Democratic Whip, has become something of an expert at measuring issues support and tallying votes. “A week ago, I would have told you it’s not likely to happen,” Durbin says. “As of [Wednesday], I just can’t rule it out. I was surprised by the intensity of feeling of some of my colleagues. It’s a matter of counting. We have 45 Democrats, counting [Vermont independent] Jim Jeffords, on our side. We could sustain a filibuster if 41 senators ... are willing to stand and fight. We’re asking senators where they stand. When it reaches a critical moment when five senators have said they oppose a filibuster, it’s off the table. It’s not going to happen. But if it doesn’t reach that moment, then we’ll sit down and have that conversation.”

It’s impossible to tell yet whether 41 senators can be corralled to prevent Alito’s confirmation. As of Friday, according to Daily Kos, nine Democrats in the Senate have already declared their intention to vote against the Bush nominee, with another (Bill Nelson of Florida) “leaning no.” One other Dem, Ben Nelson of Nebraska, is already signaling that he’ll give Alito his vote, and at this point, no Republicans have said they’ll oppose Alito, although Lincoln Chafee (R-Rhode Island)--a known GOP heretic in a liberal state, who’s facing heavy opposition from both the left and the right in his bid for re-election in November--might come to reason that it’s in his best interests to turn thumbs down on this nominee. If Feinstein, Byrd, and, in all likelihood, Joe Biden (D-Delaware) don’t sign on to a filibustering plan, and if Nebraska’s Nelson follows through with a “yes” vote, then Durbin and Senate Minority Leader Harry Reid (D-Nevada) would have to secure the backing of every other Democrat (plus Jeffords), or some combination of Dems and a handful of moderate Republicans, in order to block Alito’s anticipated confirmation.

With expectations of success apparently so low (unless Durbin knows something significant that he’s not sharing), Democrats might choose to pass, after all, on employing the legislative tactic of filibustering, and instead vote en masse against this confirmation, then make an issue of Alito’s conservatism (and the risks it poses to abortion rights and civil rights) during the midterm elections. Besides, employing the filibuster against Alito might well spark the so-called nuclear option, by which Republicans would vote to eliminate the use of filibusters against future judicial nominees--thereby, as The New Republic opines, “ensuring Alito’s confirmation while permanently marginalizing Senate Democrats.” On the other hand, a weapon like the filibuster is only as good as the likelihood of its actually being used. If Republicans can continue to cow Dems with threats that they’ll exercise the nuclear option if a filibuster is mounted against Alito or the next staunchly conservative Supreme Court nominee to come down the pike, then the filibuster might as well not exist.

A preliminary vote on Alito’s nomination--with or without legislative fireworks--is expected in the Senate Judiciary Committee on Tuesday.

READ MORE: “Frist Calls Alito Democrats’ ‘Nightmare,’” by Richard Cowan (Reuters); “Kiss and Make It Up: What Happens When There Is No Law Constraining Alito,” by Dahlia Lithwick (Slate); “Why the Democrats May Not Filibuster Alito,” by DHinMI (Daily Kos); “Top Democrats Oppose Alito Nomination,” by Thomas Ferraro (Reuters); “States of Confusion: What If Roe Were Reversed?” by William Baude (The New York Times).