This morning Diane Feinstein threw a heaping pile of wet noodles over the idea of filibustering Samuel Alito's nomination to the Supreme Court:
"I do not see a likelihood of a filibuster," said Sen. Dianne Feinstein, D-Calif. "This might be a man I disagree with, but it doesn't mean he shouldn't be on the court."
She said she will not vote to confirm the appeals court judge, based n his conservative record. But she acknowledged that nothing emerged during last week's hearings to justify any organized action by Democrats to stall the nomination.
Robert Bork also had legal accomplishments that would have warranted his ascension to the Supreme Court, but he was rejected because he was a conservative nut. Alito, by temperament and through his public presentation, is not a lightening rod like Bork. But there's plenty to suggest that their decisions and to a lesser extent their written opinions would be very similar, so Feinstein's comment isn't very convincing.
I've thought all along there was good case could for filibustering Alito. Alito is a judicial radical and far from the national mainstream on numerous issues. Polls have shown for quite some time that Americans, even a good portion of those who are either squeamish about abortion or even openly opposed to it, are opposed to placing someone on the Supreme Court who will overturn Roe v Wade and make abortion illegal. He's clearly infatuated with executive power and disdainful of the law as something that is a living institution that grows to cope with new problems, challenges and ways of life. And his failure to recuse himself on the Vanguard case would have enabled opponents to demonstrate his ethical shortcoming. And with his anemic numbers, George W. Bush wouldn't be able to count on much support from the country in ramming through the nomination.
Up to now I've been open to the possibility that the Democrats would mount a successful filibuster. They held firm on the filibusters of the appellate judges that prompted the agreement by the Gang of 14 to avert the GOP launch of the Nuclear Option. They hung together to filibuster the appointment of Ambassador to the UN John Bolton, forcing Bush to bypass the Senate through a recess appointment. And Harry Reid has led them to some clever procedural victories, wringing the maximum power out of their disadvantaged status as a minority party with a corresponding minority in the House and a Republican in the White House. But if there's talk against a filibuster coming from Diane Feinstein—whose connections with the pro-choice groups is close, and who Dems would need to assume is a solid supporter if they hope to sustain a filibuster—then it appears unlikely that a filibuster will succeed in blocking Alito's nomination.
Why wouldn't most of the Democrats filibuster Alito? The entire point of the Nuclear Option battle was to reserve the filibuster so Democrats could use it to prevent the court from being tipped into the hands of a Scalia-inspired majority. Alito will almost certainly side with Scalia and Thomas far more than did his predecessor, Sandra Day O'Connor. I was thinking about that the other day, in wondering why there were no clear signs that the Democrats would sustain a filibuster of Alito's nomination. And then it hit me; is it possible that the Democrats have calculated that Alito doesn't represent a net change on the court?
Remember, the original replacement proposed for Sandra Day O'Connor was now-Chief Justice John Roberts. Roberts is seen by just about all as a likely clone of O'Connor on many issues. O'Connor was seen as probably the most pro-business Justice on the court, and Roberts was expected to be her clone on those matters. Then Chief Justice Rehnquist died, and Roberts' nomination was transferred from O'Connor—who hadn't yet vacated the bench—to that of Rehnquist.
With his congenital sense of caution—which is a big reason he sailed through the nomination hearings, as he had never really said or done much that could clearly point to how he would rule on the Supreme Court—it's not inconceivable that Roberts will rule like O'Connor on some hot-button issues important to liberals, like reproductive rights and affirmative action. He's still a cipher, so it's hard to tell what he really thinks, but it's quite possible that his aversion to making waves will transfer into a reluctance to overturn long-standing positions of the court, in a manner similar to O'Connor's conservative pragmatism. If thats the case, from a liberal prospective, he would be an improvement over the man he replaced, who on most matters sided with Scalia and Thomas.
Therefore, while there seems to be sound reasons to expect Alito to join the right wing radicals on the Supreme Court, if one accepts that Roberts will be an O'Connor-like swing vote—I'm not sure that's correct, but if one accepts the theory—then the swap of Rehnquist and O'Connor for Roberts and Alito is largely a wash. Alito may be marginally worse that Rehnquist, but Roberts, as Chief Justice, may be about the same as O'Connor, but with the higher status as Chief Justice.
If this is the Democrats' calculation, then one can see a reason to not provoke a possible launch of the Nuclear Option. We're less than a year away from what appears a likely Democratic gain in the Senate, possibly even a transfer of control from the Republicans to the Democrats. The idea behind preventing the Nuclear Option has always been, as already mentioned, to maintain that one-use filibuster of an odious Supreme Court nominee who would alter the balance on the court. If the combination of Roberts and Alito is seen as maintaining the status quo of the court, then it's the next nomination by Bush, should he get that opportunity, that would be more likely to tip the court. Thus, with octogenarian John Paul Stevens and septuagenarian Ruth Bader Ginsberg, the calculation may be to hold the filibuster in reserve should it be needed to prevent an Alito-like zealot from replacing one of the liberal justices.
As I said, I'm more inclined to filibuster Alito than it appears Feinstein is. Done correctly—and by now it may be too late—the American public would probably have supported a filibuster of Alito. But maybe the people devising the strategy on this figure Roberts will be more liberal than initially thought; as I''ve argued before, that's the dominant pattern with Supreme Court justices of the last half-century. It seems like a risky move to me, but it may explain why some Senate Democrats who worked so hard to maintain their right to filibuster right wing radical nominees to the Supreme Court now appear so reluctant to use the tool they fought to protect.