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January 15, 2006

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Not articulating a philosophy and not acting like they had ever worked together were the biggest problems the Sen. Dems had. As was mentioned on the Sunday shows, maybe "they don't like each other and their staffs don't like each other". And their wives and their dogs, I suppose.

But if nothing was going to come out of the hearings, why not use the precious camera time to better advantage than was done, incuding saying at the outset "you may be confirmed but the issue is X on abortion, Y on wiretaps, Z on private clubs, etc.?

Yeah, no disagreement with you that they made the hearings about as useful as a bucket of cold spit.

I heard on the radio Friday morning that of the 12 Senators who questioned Alito in the committee, ten talked more than Alito.

RE: your theory.

I wish.

Or, more bluntly, bollocks.

These people in the senate can't get together on anything. They just seem congenitally unable to fight.

If you don't use the power you have, you lose it. In that sense, W. and his Mayberry Machiavellis have been right. Look how much power they claimed and used after the disputed 2000 election, and after 9/11. That they have been incompetent and criminal has not invalidated their philosophy of the necessary application of political power.

These establishment Dems have been "reserving" and giving up power so long they fear being impolite by claiming and using it.

They need to go.

When do you think they (if there is a "they") decided not to filibuster -- before or after the hearings? The time to decide, I think, was before, but I felt like they were fishing around in the shallow end waiting to see if Alito would say anything they could reel in. I'd agree with both your & DemFromCT's points, that a filibuster OR a non-filibuster could have been used advantageously, if either had been decided early and then followed through with resolve. This waffling, hemming, hawing, and then backing down -- I don't see what it gets them.

p.s. you forgot to put "Cross-posted from The Daily Kos" at the top!

Ugh. I think the decision not to filibuster is a rather large error. The point of a filibuster is not purely about keeping Alito off the court, but instead about the 2006 elections, and also Harry Reid's political power.

The beauty of a filibuster is that it would force the Republicans to go nuclear. That is the whole key to the strategy. If you are the incumbent party in Washington with a anti-incumbent tide rising in the county, the last thing you want is another "mess in Washington".

How does it hurt Democrats in '06 if they filibuster and and the GOP successfully nukes the rules to put Alito on the court?  Feelings of GOP overreach are a huge engine of Democratic surge this fall.

How does it hurt Democrats in '06 if they filibuster and and the GOP fails to line up 50 to ram Altio through by destroying the Senate rules?  It shows the nation that the Democratic position against Alito is the bipartisan centrist position.

And finally, let's not forget about the minority leader factor. Harry Reid warned Bush against nominating Alito by name only days before the announcement.  Either Reid becomes a paper tiger to the detriment of all Democrats, or he backs up his warning.  Leadership politics is the highest stakes stuff there is.  If you make public threats, you better back them up.

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It's in the interests of Democrats to have a horrendous mess on Capitol Hill.  And the GOP is helpfully in a position where they'd have to be the ones lighting the match. By filibustering, we'd get to bait them into blowing the place up.  It's textbook stuff for the "out" party. Hasn't anyone been studying their Gingrich? Ugh.

Petey, I agree. I hadn't even considered the damage to Reid, but you're right about that as well. The only thing I can come up with against your argument is that if the Repubs go nuclear and then Ginsburg or more likely Stevens dies, then Bush has a open net with no goalie, so he could appoint John Yoo or Beria or Roland Freisler to the bench. I'm not convinced it's a good strategy, but it may be the strategy some of the Dems like Feinstein are pursuing.

You have to remember about Feinstein: she has always been extremely enamored of state power. Though situationally pro-choice (female) and mildly liberal (very blue state in origin), as mayor in my city and subsequently, the woman has consistently assumed that government knows best. She has never had any discernable empathy with persons less empowered than herself. The combination of these factors makes it much easier for her accomodate to an appointment of a guy who is only a nerdy, executive power freak, not a raving nazi.

"The only thing I can come up with against your argument is that if the Repubs go nuclear and then Ginsburg or more likely Stevens dies, then Bush has a open net with no goalie, so he could appoint John Yoo or Beria or Roland Freisler to the bench. I'm not convinced it's a good strategy, but it may be the strategy some of the Dems like Feinstein are pursuing."

My guess is that this is not the true reason why a filibuster won't happen. I think the concerns are far more immediately political. I think the (misguided) rationale goes along these lines:

- 2006 is looking good for the Dems. Why muck it up by getting distracted with a high risk court fight?

- The Senators are looking at the initial blowback against a filibuster, which would hurt them, while not looking at the secondary and larger blowback against the nuclear option, which would hurt the GOP. It's the Senate equivalent of Pelosi not wanting to pursue ethics charges.

- They've been bluffed by Rove. Ever since Alito was nominated, Republicans have been loudly proclaiming how much they really, really want Democrats to stage a big fight. They might even put up ads in Arkansas! I think the bravado is covering a very vulnerable moment for the GOP.

If want a surge this fall, we need some fights with the GOP. Where are those fights going to come? Wiretapping is quicksand for the Dems. So is Iraq. Social Security has disappeared. Prescription drug medicare won't coalesce in time.

With a filibuster, Alito would have been a wedge issue for us to use against the GOP. If we'd stood together, the nuclear option would have divided Republicans while uniting Democrats.

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And even if you're correct about the motivation being the "avoid the open net" rationale, I'm dubious about the strategery.

If Alito isn't a filibuster, when Stevens dies we'll get Priscilla Owens or Janice Rogers Brown. The media will make much of the fact that the nominee failed to eat a live baby during the confirmation hearings, and the filibuster will be deferred to prevent an even worse nominee next time.

Then, when Ginsburg dies, we'll get Beria. John Cornyn will deliver a stirring speech about how Beria was merely an advocate for Stalin when he carried out the purges, and how mass murder isn't necessarily a personal view of Beria. With the specter of Roland Freisler hanging over their heads as the next nominee, Democrats will mournfully decline to filibuster.

A scrap about how the decision is being taken in the context of the '06 elections, not in the context of Stevens and Ginsburg. From the WaPo:

Senate Democrats have learned this lesson the hard way. Now, forced to decide soon whether to launch an Alito filibuster that is likely to fail, several are asking whether it is worth the effort, party insiders say. One top Senate Democratic aide, who spoke on background because he did not have his boss's permission to talk publicly, predicted a closed debate Wednesday on whether it makes more sense to focus on the most promising issues, such as GOP ethics woes, and avoid being tarred as "obstructionists" for trying to derail a confirmation vote.

Lieberman teased DFA by saying he might be interested in a filibuster. If he signed up to be the official leader and spokesman of a filibuster, do you think we could win it? He has a ton of centrist/moderate/respectable capital, needs to get back in the good graces of the Party Infrastructure, and can't be terribly excited about Alito anyway. In a Bush vs Lieberman pissing match, Lieberman might could win. And win or lose, he'd have more street cred with everyone by the end of it.

Is it even imaginable that he'd do it? If he did, would it work?

Petey, you *may* be right.....the filibuster would have to be executed with extreme message discipline. Not egocentric grandstanding a la Joe Biden. I really don't know what call to make on this one.

Ethics will help in the fall, but I disagree with you on Medicare Part D....it's already a headline making disaster. Nice target. And the big Kahuna is the economy...we have job growth slowing again. Plus the slowly but surely sputtering housing market, and it's attendant economic effects.

But sure, there is or was hay to be made with Alito.....this may not be a factor in 06

Anyway, assuming Alito went down, then what? Do it all again? Maybe Myers was a better way to go. Yikes, tho what a precedent.

By the way Petey, off topic, Romney not looking remotely as strong as Allen (e.g. Gillespie) , as I said to you once way back when. Still don't understand that call on your part.

Why not? Because he looks like a mild-mannered nice guy on TV. And his wife cried.

Pathetic.

"the filibuster would have to be executed with extreme message discipline. Not egocentric grandstanding a la Joe Biden."

Yup. It would have to be run out of Reid's office.

"Anyway, assuming Alito went down, then what? Do it all again?"

If Alito did go down, it would mean that 51 Senators voted to make it that way. So the pressure would be on Bush to answer "Do it all again?", not on us.

"Maybe Myers was a better way to go. Yikes, tho what a precedent."

Miers was definitely a better way to go for one simple reason - she was pre-approved by the Senate Democratic leader. The criteria for a Supreme Court justice is that they must be minimally acceptable to the opposition party. That's why Clinton picked Breyer and Ginsburg after they'd been pre-approved by Orrin Hatch.

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"By the way Petey, off topic, Romney not looking remotely as strong as Allen (e.g. Gillespie) , as I said to you once way back when. Still don't understand that call on your part."

I agree that Gillespie's move is the most significant thing to happen so far in the Republican race. But I'm still dubious about Allen.

And I still think Romney is a viable player. Hell, I actually think George Pataki is still a viable player. If the '06 elections go badly for the GOP, and if McCain isn't going to clear the bar for some reason, I'd think they would move toward a governor of a blue state rather than towards Allen.

But my crystal ball is far cloudier in seeing into GOP primary dynamics than it is for seeing into Democratic primary dynamics.

I suspect there is another way to look at this.

I can actually see some advantage in giving Bush his way on Alito, and let him go ahead and shift court opinion on Reproductive Rights matters to the right -- because in fact, that is not where Americans are when fairly polled, and it might just be productive to let the Republicans go ahead and take credit for something that will be very unpopular with their voters.

It isn't just Abortions -- it is modern Genetic Counseling. Why do that if the latent characteristics that caus you to test cannot legally result in an Abortion? We would have to revisit the "orphan fertalized egg" debate, Would we need court orders to destroy them if they are longer needed, In fact, would Fertility Clinics be able to continue to operate?

My guess is that Republicans currently use many of these services, and if they were no longer available at least legally -- they would not like it. However up till now, they have had the luxury of sitting back and letting the Democrats expend political capital to preserve rights, without consequence to Republicans who have made their beds with the Fundi's. In a way it may be time to just let Republicans take all the blame for unpopular policy, and see if we then can evolve some new dynamics.

Should have known there was no support for a filibuster the minute Lieberman said it was on the table. Remember the MBNA move ?

I agree that the Dems are risk averse to the point of self-parody by not challenging Alito. Apparently the momentum they are interested in is that which can be measured in polls not actions.

One group sure to benefit from such leadership....progressive politicians.

If the Dems were going to filibuster, they would have had to lay the groundwork, and they didn't. I agree they seemed like they were "fishing in the shallow end" waiting for a smoking gun, and of course the R's had ensured there wouldn't be one. This does reflect on Reid's leadership, but with the colossal egos on the Judic Committee, how could he impose discipline? These Dems need to impose self-discipline, and it ain't going to happen. To think that they couldn't get together and split up the areas of inquiry, make a short, punchy speech about Dem values on each one (reprod rights, exec power, war powers, 4th Amend, commerce power, etc) and then ask Alito where he agreed and disagreed, or even where he stood, boggles the mind.

I also agree that, having failed to lay the groundwork and/or turned up a dead cat, they are now looking at preserving the filibuster for Stevens or Ginsburg. I can see Roberts being cautious as Chief, in order to minimize the number of fractured opinions. I can also see the Bushies living with Roberts NOT overruling Roe but Alito joining Scalia and Thomas, and then going to the base in 2006 or 2008 on the issue. In fact, I can see them having set it up that way, and being very sorry Alito isn't going to get confirmed in time to rule on the reproductive rights case that I believe comes up this month to mitigate Roberts.

Personally, I would have liked to see a filibsuter, but realistically, once we lost those seats in 2004, it was always a long shot, needing much more preparation and cooperation than the Senate Dems seem capable of.

You can introduce as many hypotheticals as you wish. You can try to rationalize and spin it as you will but I would offer a simpler explanation: cowardice and inertia. Few Senators want to rock the boat that they are passengers on. It is about comfort, and Senators by and large are very comfortable people. Alito's decisions however retrograde will have no real personal impact on them or their families. If it were otherwise, if they themselves and not just the rest of us felt at risk they would fight. But fight for us, you must be kidding.

Update: The Dem oldguard will use Alito to motivate turnout for 2006. Rather than perform their representative duties on principle, they will withhold political services until it is expedient for the party.
Nice play again guys...when in doubt, let Lieberman and Feinstein drive the bus !

You did good, DHinMI. I had something of the same thought myself, but agree with the posters on Kos that Roberts is to the right of O'Connor and Alito to the right of Rehnquist even if (which we don't know) they would play similar ideological roles on the Court we have now.
And, of course, vote DovBear. JIB Awards are at jpost.com/C005/BlogCentral.

How does CAdemParty develop primary challenge to DiFi?
How soon will Feingold narrow his VP choice options so the two of them can filibuster Alito now?
What ivy-league contacts will produce the documents Specter and the Library of Congress could not, for Sen. Kennedy's emissaries investigating whether ROTC-saving was all Alito was in Princeton U's CAP for?
On dividing the questioning in Judiciary committee and the persistent bashing of Biden, I thought there were very heartfelt moments from each Democrat questioner, quite difficult, given the nominee's dispassionate delivery. Biden's second day questions were interesting and pointed, though saccharined a bit as has become his style; contentwise, he was on important topics. The issues with Alito's philosophy are structural; he is every bit the theorist Yoo is; and combined with Roberts, Alito will deliver much to Gonzales' delight. Yet, what Alito called 'momentous' with respect to issues like court-stripping, habeas narrowing, warrantless search, and presidential blue-pencilling legislation post ipso facto, might make the SCOTUS backroom debate lively. I agree with Laurence Tribe's vernier dial placing Alito right of Scalia, but left of Thomas.
On a visual scale, there is the sideburns rating system, whereby that famous photo of nominee Rehnquist in Nixon's office, Rehnquist with muttonchop sideburns, which were somewhat rakish for those days when Barry Goldwater would never be seen in such indiscrete sideburns. So this value system would place Rehnquist on a racier side than most conservative jurists; though I suspect what was ameliorated was his radical right vision once on the court a while; and though he retained right-wing priorities, his respect for rule of law was paramount and tempered his innate proclivity for the wingnut gesture. Roberts and Alito both have records of cautiously applying the desultory wingnut gesture only where defense counsel is in a weak argument with ample confuting caselaw behind which to hide a technical opinion against the 'little-guy'. I observe what made Alito's wife sad was the Republican former federal prosecutor's rhetorical device of sham-accusing Alito of nefarious motivation. Graham's southern background is one more accepting of resonant brimstone. But it should be the Republicans taking the heat for that rudeness, not the liberal Democrats who actually made a host of points against Alito's subtle conservatism

I think the timeline evaluations by other commenters pertain to Feinstein's own calculus now, as well; she has always conceded the middle ground of the present if there is a possible liberal recoupment visible on the horizon, in this instance, the likelihood that when subsequent nominees to the Supreme Court are put forward the congress and executive might both have different and more liberal occupants.
A liberal filibuster by an individual who wants to be president, now, is the only way I can see a filibuster happening; it would occur, as several commenters have observed, after leadership caucus this week.
Although there are "tinfoil" theories about how Bush was elected first as a minority president and then as an Ohio-winning giftee of a close election decided by a state registrar who refused to program electronic voting machines in sufficient numbers to make it easy for Democrat neighborhoods to vote, the essence is people voted for Bush because they want these changes.
I am not so sure Bush has done much which is excessive in the domestic spying program, as it effectively shut down the schemers who have no home countries. Congress will remake FISA to rein in the president's persistence in refusing to power share on the 4th amendment issues involved.
And, lastly, the institution of the supreme court itself always has a mellowing effect on appointees. I liked Reid's gentlemanly casual suggestion to the president he nominate Miers; it made GW think some; it bought time; it exposed the Republican power bases more distinctly.
I give no credence to the caucus of 14 on cloture; they are McCain's club. Actually, they were 12 until the final day before signing the MOU. And senior strategists in both parties probably wished they would have a moment to take those 7/7 mavericks to the respective woodsheds of each party. The filibuster is a quaint tradition; it has protected some eccentric minority constituencies, some of them regressive influences on developing democracy in the US. But the system of government we have drives the perimeters to the center. The key is to arrive there with character. Feingold has a lot of Feinstein-like characteristics in his politics; but when even liberals were caving to the habeas restrictions proposed by Graham and then Bingaman, Feingold grasped the meaning; that it would restrict rights, affect treaties, and cover evidence about torture. Some government. This is going to be a hardworking primary season dawning in 2006 for Democrats; but the elements are there already clearly aligned with Democrat traditional strengths.

The Republicans can't find a challenger for Feinstein. The Dems certainly aren't going to try. This will be her last term, imo, because of age.

How does CAdemParty develop primary challenge to DiFi?

Diane Feinstein is "my" Senator. Today's question: Why is she even a Senator? (link to poster image)

I'm not so shocked as a liberal that she would be more conservative than me, but this is her signature issue, the very reason she's there, and now.... nothing.

The question is real: Why is she in the Senate? What is she trying to accomplish that she would allow this to happen without a fight? Primary Challengers for all!

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