Notes on the Nuclear Option -- Part XVIII

by Kagro X

Hey, long time no see! Well, here we are again. It may be too early to tell whether we'll make it all the way back to the brink of nuclear destruction, but it couldn't hurt to revisit the scene of the crime and see how the landscape has changed.

When we last left you, Lindsey Graham was committed to not being committed to maintaining The Deal.

Still true:

Senator Lindsey Graham, Republican of South Carolina, fired back Sunday, saying that if the Democrats staged a filibuster against Judge Alito or Judge Luttig because of their conservatism, "the filibuster will not stand."

But what about his partner in crime, Mike DeWine? DeWine now faces re-election challenges from both Sherrod Brown and Paul Hackett (provided they don't kill one another first), and carries the baggage of the Ohio GOP's internal meltdown, even if not directly. Will he add the monkey of the nuclear option to his back? Will it make him a "flip flopper?" Is anyone willing to carry Dick Cheney, in whose hands the fate of the nuclear option may rest?

Recall that Cheney, as President of the Senate, was originally being counted on to rule in favor of a Republican motion to find the filibuster unconstitutional with respect to judicial nominations, even though just making such a ruling would run counter to all precedent, not to mention the advice of the Senate parliamentarian. Now, with the Vice President's chief of staff under indictment for (among other things) obstruction of justice, how much more justice does Cheney really want to obstruct? The answer, of course, is: as much as possible before being carted off to prison. But the calculus may be different for Republican Senators being asked to take seats one more time in the deck chairs of the Titanic.

Also new: the death (or mortal wounding) of the "upperdownvote." Sure, sure, there will be plenty of spin to try to explain this one away. Miers withdrew, so it doesn't count. Or, "upperdownvotes" for anyone with "majority support." (I wouldn't mind taking that second one on, being a tacit admission that the president screwed up far worse than previously known.) But ultimately, the "upperdownvote" rationale has been hollowed out like a pumpkin, and just in time for Halloween, too.

Next change: Jon Kyl takes the Constitution out of the "constitutional option," something reader Steve told us about back in mid-May, and reminded me of a short while ago at Daily Kos:

Shortly before the compromise made all of this moot, Sen. Kyl gave a very lucid floor speech in which he articulated the basis for the nuclear option.  The gist of it was that the Chair would rule that judicial filibusters are contrary to the traditions and norms of the Senate, and thus out of order.

[...]

So I think if the nuclear option had gone down, or if it goes down in the future, I don't think the Constitution is going to be brought into it.  I think they realized the case was too thin and that they simply didn't need to go there.

To be fair, Kyl doesn't completely abandon the Constitution here. But he does pare down the reliance on it. The "upperdownvote" is not constitutionally mandated, so to speak, but he insists that the Senate's rulemaking ability is unlimited, and that they can therefore be changed at any time. Interestingly, his argument is that the traditions and norms of the Senate dictate against the use of the filibuster on judicial nominations, and that the Senate should act to change the rules to protect these traditions and norms. As Steve noted, this would protect the rules by changing them, which is ridiculous enough by itself. But Kyl also overlooks something else:

Senators have "rights," but we also have obligations to each other and to the nation. So we limit our rights on the basis of mutual respect and a belief in good government, but -- candidly -- also out of fear of retaliation. If I assert my rights too forcefully, I not only disrespect my colleagues, but I threaten my own public policy goals. The result is a complicated, multilateral "truce" of sorts that allows us to do the people's business in an orderly way. In a word, we gain stability. Institutional stability.

So far, so good.

In short, the Senate is institutionally stable not because of the rules, the precedents, the standing orders, or the rulemaking statutes I discussed earlier. The body is stable because we respect each others' prerogatives and understand that any breach of the truce will produce a reaction. It is that basic understanding of physics -- action, reaction -- coupled with genuine good will that allows us to function even with the many individual "rights" we possess. The rights only work because we so often choose not to exercise them. So it is not just rights which define the Senate, but also restraint.

Ah, now wait a minute. That's where we get off track. Is that really the case? That the Senate is stable because of the tradition of respect for one another's prerogatives? Or because of the more "candid" admission -- that is, because of fear of retaliation? Let's be honest, Senator: Ultimately, it's the fear. While it's certainly true that it's not the mere existence of the rules, precedents, standing orders and rulemaking statutes that induce stability. What keeps things stable is the teeth they give to the assertion of rights, whether exercised on offense or defense. You say it's the non-use of the rules that contribute to stability. I say it's the threat to depart from tradition that does it. Tomato, tomahto? Maybe, maybe not.

As interesting as that little sidebar was, Judicial Watch is out to prove the very opposite: that the Constitution does in fact mandate an "upperdownvote."

"The rules are flagrantly unconstitutional," said Tom Fitton, president of Judicial Watch, after attorneys concluded their oral arguments. "The Senate, as a whole, is defending its case in court and telling the court it has, essentially, no purview over the filibuster rule and to stay out of it," Fitton continued. "We just don't think that should hold up."

Yes, Judicial Watch is suing the United States Senate, arguing that the filibuster is unconstitutional, and sticking to the argument that Kyl has abandoned -- that the Constitution's text demands an "upperdownvote," and that no "supermajority" requirements may be imposed. The argument glosses over the difference between substantive and procedural votes, as we all know. But Judicial Watch treads on even more dangerous ground than that, insisting that it has standing to sue the Senate on behalf of all citizens, because allowing filibusters of judicial nominations keeps judges off the bench, which contributes to delays and case backlogs, in which all citizens, as potential litigants, can be said to have an interest. The district court didn't buy it, but Judicial Watch hopes the DC Circuit will. Of course, this argument opens up a whole new can of worms. Who holds the "right" to an "upperdownvote?" You? Me? Judicial Watch? The nominee? The Senate? The President? Everyone? Only litigants already in the pipeline? I have no idea.

But what about the impact of the more likely outcome -- that Judicial Watch lacks standing, or at the very least cannot overcome the Senate's rulemaking prerogatives? What would it mean for whatever shreds of the "constitutionality" of the "constitutional option" if the DC Circuit says there's nothing in the document that mandates an "upperdownvote?"

That would leave us looking at a nuclear option landscape that included degraded arguments on constitutionality, degraded arguments on "upperdownvotes," and degraded standing for DeWine, Frist, Cheney and Bush. All marshaled for the president's third try at filling a seat he has variously hinted would go to a woman, which Alito is not, or to the country's first Hispanic nominee, which Alito is not.

The Alito nomination may or may not rally "the base," depending on which one you're talking about, but the one thing it doesn't do -- and can't do -- is restore the image of the "strong, resolute leader"  who "knows what he wants" that a campaign (at least the White House's part of it) for overcoming opposition will demand.

Comments

[So, let's count the votes... shall we?]

I think we have Chafee, Snowe, Collins, McCain and DeWine on a good day. I think we definately lose Warner and Graham. That means it is up to Arlen Specter ... on a good day.

The fate of Roe might well rest in Arlen Specter's hands :(

[Kagro X]

I think that Warner can be swayed, depending on how long this process takes, and what happens to Cheney in the interim.

Maybe some probing questions on torture for Alito.

[Mimikatz]

I think you are very right about how much the landscape has changed here, and it may change more in the future. There is still talk of Bush making a grand attempt to redo the tax code (get rid of the deduction for state and local taxes and limit the mortgage deduction in an election year?) in the WSJ today, along with an article about how Bush is losing ground abroad because of his weakness. Those things will just make Senators more independent, not more dependent on Bush.

I think we can't discount the impact of the torture issue here, and the blood on Cheney's hands over that issue. Remember, the defense budget still needs to be passed, and Bush has threatened to veto it over that provision. Powell has been lobbying heavily for the amendment.

I think we also can't discount the impact of next year's election, and the GOP's difficulty in recruiting quality candidates. If the prospect of losing some seats looks plausible, then the nuclear option is less attractive, it seems to me. After all, it isn't just the filibuster they are throwing away here, it is the home state senator's ability to put a hold on the nominee. The threat of a filibuster generally is at the heart of what gives individual Senators the ability to extract concessions from the leadership and makes them different from House members. They ought to remember that, especially some of the real primma donnas, like Ted Stevens.

[manyoso]

Graham, Specter and DeWine have all said that they don't think Alito is Extraordinary and are threatening to vote for Nuclear meltdown:

http://www.ohio.com/mld/beaconjournal/news/state/13044914.htm

http://www.nytimes.com/2005/10/31/politics/politicsspecial1/31cnd-confirm.html?hp&ex=1130821200&en=08c6b143aff1cb6f&ei=5094&partner=homepage

http://www.washingtonpost.com/wp-dyn/content/article/2005/10/31/AR2005103101207.html

That's it folks :(

[Petey]

Don't Fear the Mushroom Cloud

As in the previous nuclear showdown, the important thing is not whether or not the GOP has 50 votes to break the rules.

The important thing is whether or not the Dems hold together 41 votes to make them break the rules.

Call their bluff.

Make them either back down if they don't have the votes, or make them lose it on the floor if it's confused and they get close to 50, or make them go nuclear.

The Dems win in any of those scenarios as long as we hold together 41 votes.

Either Alito and Bush lose, or we call the GOP's bluff and let them win by nuclear war. We'll be happiest in 2006 if that's how it all shakes down.

The WH needs an apocalyptic fight only in the short term. By January, they'll need peace again, and a scorched earth Senate will work toward Democratic electoral aspirations in 2006.

The structure here is much like it was during the SS fight: if Dems hold together, they win the political fight. (And that's true even if Alito gets confirmed amidst the nuclear warheads exploding.)

[manyoso]

Graham:
But Senator Lindsey Graham, Republican of South Carolina, fired back Sunday, saying that if the Democrats staged a filibuster against Judge Alito or Judge Luttig because of their conservatism, "the filibuster will not stand."

Specter:
SPECTER: Well, I'm always concerned about a filibuster. But I think that Judge Alito's record hardly measures up to the standard that the Gang of 14 had of extraordinary circumstances. I think it hardly does that.

DeWine:
"I can't believe anyone would believe this is a nominee that could be filibustered or that it would rise to the level of 'extraordinary circumstances,'" said DeWine, one of 18 Senate Judiciary Committee members who will hold confirmation hearings on Alito. "If someone would filibuster, though, I would be prepared to vote to change the rules."

[Mimikatz]

And everyone said Harriet Miers was going to be confirmed. Let's let this one play out a little before we all just lie down and die. There's a lot to dislike about Alito.

Here's Garance Francke-Ruta's take at TAPPED of Alito as the candidate of the angry white guy who wants to get back his power over the wife and kids. This is a powerful narrative that isn't going to play well in much of America, and women vote. The more that the Iraq War undermines Bush's advantage on the War on Terror, the more women are going to remember why they dislike this kind of person. And Bush himself isn't on the ballot in 2006. It is going to be a collection of out-of-the-mainstream white guys who want to tell people how to run their lives and give the executive the power to make it stick. Let's just see how it develops.

[Petey]

To Expand Slightly:

If both parties want a fight, one party should be pursuing a wrong strategy. This is a zero-sum game. Normally, if a fight helps the GOP, it hurts the Dems, and vice versa.

But in the case of Alito, each party wants a differently timed fight.

The GOP wants a fight right now to take attention off Libby and all the other bad news they've been making for themselves. They also want a fight right now as they see the need to immediately firm up the base.

The Democrats want a fight in December and January, making the President look like a divider, not a uniter during the State of the Union time. The Dems want a fight as late as possible to reinforce the idea of "The Mess in Washington" as close to midterm elections as possible.

Give them their fight. It'll help up in the long term.

[Mimikatz]

Digby feels the same way about Alito. Now is the time to make the fight about privacy and birth control. And as well about the powers of Congress, and its ability to redress discrimination, and the economic issues.

And I agree with Petey's last comment. This is a fight that the Dems can win, or at the very least lose well and productively, a little bit down the road. So let's let it all play out.

[emptywheel]

Petey

I don't think it's a question of timing.

I think Rove, after he took a deep breath and decided he wouldn't be charged, yet, decided he needed some guarantee they'd have braying troops for the foreseeable future. Not next week. But for the next 6 months. And increasing polarization while you're at it.

Rove/Bush took that option that will provide them storm troops in the short term (they're horny for this fight) and then, when they lose, in very violent terms, for the long term. This is a fight Bush knows he'll lose, and he's happy about that.

[Saugatak]

My take is, Bush originally did not want this fight: witness the choices of Roberts and Harriet Meiers, not on the top of the list for conservative judicial nominations.

Why avoid the fight? It's not that Rove cares about avoiding the fight. I think Rove realizes that if the Supreme Court shifts to the right and bans abortion, the far-right will be happy but everyone else will be pissed. The ideal situation for Bush is to have abortion be out there, so they don't pay the political price for taking away the option, yet campaign against it to get the far-right voters out there.

Now of course, that long-term strategy has to be sac'd for an abortion figt to distract the country from Traitorgate. They could have picked a number of people that would have provoked this fight, but none better than Alito, the guy who was overturned on Casey. Since he wrote the 3rd Circuit decision on Casey, he will get grilled on it in Senate hearings. The uproar and resulting spectacle will be a huge distraction from Bush's current problems.

If the Alito confirmation does result in the overturning of Roe and Casey, that could be the best thing to happen for Dems.

IMO, there are a lot of conservative lower middle class families who, if they can't afford to send their kid out of the States to get an abortion, are going to be pissed that the Supreme Court has taken their rights away and will vote Democratic for a long time to ensure that Democratic presidents stack the court with more liberal justices.

[pebird]

EW:

"This is a fight Bush knows he'll lose, and he's happy about that."

Please expand - I understand why Rove wants noise and cover but why Bush thinks he'll lose - you give him that much credit?

[demtom]

I agree that this Alito appointment is sort of an emergency "call in the troops" ploy, to ensure right-wing support during potentially difficult months ahead. It's not unlike DeLay provoking the Schiavo showdown just as his ethics thing was coming to a boil. That had its downside (raising his public face-of-the-party profile in a far-right context), but he needed to do something to whip up base support. (As Reagan once said in a different context, when you're down 3 games to none in the World Series, you have nothing to lose by taking a chance)

I was with Petey earlier in the year on the whole nuke thing, and I'm with him now: it's important the Dems make this stand for tradition, and expose the GOP for the radicals they are. Even losing could be winning big later on (as early as November '06). Wimping out on the fight would be the worst possibility.

How many GOPers do you think really see reality right now? All you hear on TV is how great this all is for Bush, pleasing his base, as if it has zero downside. Do the party hacks who say all this believe it, or are they putting on a show/whistling past he graveyard? Could they really be so blinded by their own propaganda they believe the country wants to go off this right-wing cliff?

[jonnybutter]

It's totally about timing and finesse. The longer the dems can delay the better. And I agree, Warner's not firm.

publius has an interesting take on the politics of it - at least as of right now:

Basically, it’s just not clear to me that the Court has 1/100th of the importance that everyone ascribes to it. Throughout history, it has generally followed public opinion (or at least, elite public opinion), and there’s little it can do against committed legislative majorities (for instance, Brown was virtually ignored until the Civil Rights Act ten years later that tied integration with federal funding). The legislature is where the real action is – and it’s better to focus the resources there.

So, the million-dollar question is whether an all-out war over Alito makes winning legislative seats more or less likely. Nothing else matters. And I predict it will make it less likely.....

Again, I think there's more to it (timing) than he's suggesting, but he does have an important general point.

[Saugatak]

JohnnyButter, I disagree with Publius. Why?:

Dred Scott
Korematsu vs U.S.
Brown v. Board of Education
Roe v. Wade and its progeny

The point is, although the courts can't force the legislature to exercise the power of the purse, they can PREVENT things from happening, i.e, make abortions illegal or statutes that prevent abortions unconstitutional.

And a justice of Alito's age can sit on the court for 30 years.

Reading Alito's opinions, I'm 99% pretty certain he will vote nay on Roe v. Wade.

OTOH, there's no guarantee that John Roberts will join the Scalia/Thomas/Alito camp. Roberts struck me as being a very careful conservative, favoring conservative positions but being extremely aware that changing past precedents that had been upheld by numerous courts would have the effect of watering down the Court's legitimacy.

[jonnybutter]

JohnnyButter, I disagree with Publius.

Yeah, I wasn't endorsing his total thesis - which, after all, he himself is just arguing through for the sake of it (he may not ultimately endorse it either, necessarily). He's one of the best critics of the feddies there is (very short version: originallism is horseshit); he's anything but faint-hearted about this stuff. I think it's more something to just consider rather than necessarily 'go with' in this fluid situation. But, put it this way: I'd rather have Scalito confirmed and win back congress than beat him back and not. I realize that may be a false choice, but it may turn out not to be, too.

One of his commenters also pointed out that Pickett's Charge almost succeeded....

[jonnybutter]

One thing I find it incredibly easy to forget sometimes is that the republicans don't know what's around the next bend anymore than we do. We need to stop reacting to them in a reflexive way, which can be a far more subtle assignment than sounds like on it's face. Republicans are in disarray and vulnerable now. That should be our psychological point of departure. They certainly know it, and we are idiots - like Tweety and all the rest - if we take them at face value, if we cower (eg, nominating John Kerry). They probably have the votes today to confirm Michalito absent a filibuster/U Option, but the vote isn't today. Our Senate caucus has to be cool and cunning and ruthless. We don't know what's going to happen, but they (the gop) don't know either. They're going down, boys and girls. The dems job is to make their returns diminish, in a hundred ways.

I think publius' point is that this may be a time for all out war, or it may not be but would feel good. Good lawyer that his is, he advocates a position. It's also possible that it will be a good time AND it will also feel good.

[Saugatak]

Publius's point of when to pick and choose your battles is a good one . . . but we're not like the Republicans. We don't take orders from on high, we're independent thinkers.

I don't see how we can avoid this fight. Dems have to take care of our base too and any Sen. that fails to oppose Scalito is going to lose the Democratic base.

Also, abortion is a weird issue. Most people favor it, but aren't crazy about it. For the right-to-lifers, it's their litmus test, for most others, as long as abortion is available it's not going to be a make or break issue.

BUT that all changes once it appears abortion will be taken away. Then the majority of people who support abortion, who weren't making an abortion a litmus test issue because it looked safe, will all of a sudden make it a limust test issue.

Frankly, I think the nomination of Alito plays into Dems' hands. Either we'll knock Alito out and lame duck Bush for the rest of his Presidency, or Alito will get in, Roe v. Wade gets knocked out, and then we take over the White House until we can reshape the Supreme Court.

[jonnybutter]

You may be totally right, Saugatak. I'm just sayin'...politics is a dish which often times is best eaten cold, if you know what I mean. What matters is not who gets the 'credit', in a way (although of course it matters in another way), but rather what actually happens. The goal is doing serious work for real people. That can win.

The current gop hegemony is clearly a false dawn. Please don't 'agree' with that statement - belive it. We're still a little scared of the Republicans, and that's bad. You can express your fear by 'fighting', too: 'you big mean bully! I'm not ascared of you!'. Rove loves that stuff.

[emptypockets]

Kagro, you probably addressed this in pts. I-XVII somewhere, but is there a mechanism for filibustering (or something equivalent) in committee?

[Kagro X]

Well, you used to be able to use holds and blue slips to stop action in committee, but Hatch did away with those, piece by piece.

In fact, that's part of the answer to Kyl. It used to be that the committee chairman would honor holds and blue slips because not to do so was to tread on the traditions and norms of the Senate in the sort of way that invited retaliation. But Hatch could give a flying fuck, and ignored them when convenient. Now, here we are, left with nothing but the filibuster, about which Kyl has the nerve to say Democrats are in violation of the traditions and norms of the Senate.

[Billmon]

"One thing I find it incredibly easy to forget sometimes is that the republicans don't know what's around the next bend anymore than we do."

To use a different civil war metaphor than Publius: In his memoirs, Ulysses S. Grant wrote about how worried he was before his first battle -- because his troops were green, he thought the enemy outnumbered him, etc. But when his brigade advanced to its objective, he found the rebels had already fled. Grant said that was when he realized that the enemy was as scared of him as he was of them. It was a lesson he never forgot.

I don't know if that's true in this case -- the wing nuts have been getting ready for this battle for a long, long time and they've pretty much got the media on their side, or at least neutralized.

But the Senate Dems don't have to decided right now whether to risk nuclear war. Before the ground war comes the air war, and right now it's up to the outside groups like PFAW and NARAL, and the blogs, to decide how aggressively they want to go after Scalito. That decision, however, does have to made right away -- before the wing nuts can completely define the guy as a saint and a scholar.

Personally, I don't see any reason not to Bork the hell of him, as long as it stays focused on his extremist judicial record. Make the Republicans defend strip searching 10-year old girls or the free and legal ownership of machine guns. Narrow cast the implications of his Casey dissent -- i.e. all your uterus are belonging to us -- to pro-choice women in places like Maine, Rhode Island and Ohio. Try to make Snowe and Collins and Chafee and DeWine sweat a little.

If it comes to a filibuster, an effective Borking campaign will help hold the Dems together. And if it doesn't, it will at least make the GOP "moderates" pay a price for voting for him. So let's just do that, see how the situation develops, and not get to obsessed with the nuclear option. That's what THEY want.

[Kagro X]

Do we like sports metaphors at TNH? Here's a good one (hat tip to PaulDem):

Rounding first base and digging for two

When good baserunners (or at least baserunners who are confident of their own speed) hit a single but see the outfielder have to move too far to field the ball, they will round first base and dig for second.

Unless the baserunner knows there is a gold glove outfielder making the play, it always seems advantageous to force a throw. You're putting the pressure on the other team to make a perfect throw to get you out and that happens a lot less oftent than you think. Sometimes you'll force an errant throw and get another base besides.

I think the Democrats need to test the Republicans' arm on the filibuster this time around. The GOP may play it perfectly but based on their keystone cops routine so far this year, I wouldn't bet on it.

[mrblifil]

Frist. And I'm not trying to top the thread.

Seems to me Frist's new found vulnerability on the issue of his SEC troubles are an additional variable in an already complicated equation. Can he really stand up in front of the cameras day after day in support of killing the filibuster forever, and not expect opponents to harp on his lack of character?

I think they're fronting, and I look forward to a complete internal food fight to reemerge, especially once the "Alito is a moderate" strategy being employed today starts making the wingnuts worry about stare decisis and what it means to their pregnant daughters.

[Saugatak]

"Personally, I don't see any reason not to Bork the hell of him, as long as it stays focused on his extremist judicial record. Make the Republicans defend strip searching 10-year old girls or the free and legal ownership of machine guns. Narrow cast the implications of his Casey dissent -- i.e. all your uterus are belonging to us -- to pro-choice women in places like Maine, Rhode Island and Ohio. Try to make Snowe and Collins and Chafee and DeWine sweat a littl" --Billmon

I think that's exactly right. In those states, you don't want to be the vote that ended abortion. As long as there are only 4 Republican Senators, GOP leadership will probably let them vote against Alito so they can win 51-49, but if there are more than 4 Republican Senators who don't want to kill abortion . . . well that could provoke a civil war in the Republican Party. That would be fun to watch.