I want a filibuster. You want a filibuster. Everyone on this site wants a filibuster. And while
a plurality of Americans do not want a filibuster, 38% do.
This desire for a filibuster has led to a lot of vote counting and speculating. Can the Democrats get to 41? So far, Ben Nelson of Nebraska is the only Senator indicating he will vote in favor of confirmation, and Chris Bowers over at MyDD has this to say:
From what I have heard, right now the "no" votes on Alito are somewhere in the range of 44-47, and the filibuster votes are somewhere in the range of 37-40. In other words, we are close, but not there yet. Unfortunately, I have no idea who the weak Senators are on the filibuster vote, so I can't give you any information which contacts would be best to make.
So, can Democrats get to 41? In my opinion, this is the wrong question. The real question should be, can Democrats get to 51. Cause without 51, 41 doesn't matter.
More on the flip...
By 51, I'm obviously referring to the number of votes needed to block the Republicans' attempts to go Nuclear should the Democrats filibuster. And this, to me, is the key part of the equation. As long as Democrats can't muster up the 6 Republican votes necessary to block the elimination of the Judicial filibuster (as well as keeping their own side in line, especially the Democratic signatories to the Gang of 14 deal), then 41 votes doesn't do a lot of good, and it can actually do quite a bit of harm.
First, let me state in no uncertain terms that none of this analysis is meant to support Alito for the Supreme Court. At the very least, I believe every Democrat should vote against his nomination, to show a unified front and draw a distinction between the two parties (although Ben Nelson gets a pass, being from Nebraska and all). That being said, I don't believe opposition to Alito can take the form of a filibuster unless Democrats can muster those 51 votes. If Democrats cannot muster those 51 votes, and the Republicans decide to go Nuclear, then Alito still gets on the Court. The attempt to filibuster will not have gained Democrats anything tangible, and it will have left them without an important tool of the minority party.
Who cares if we don't have a filibuster if having one means Alito still gets on the Court? We all should. The Supreme Court is the law of the land, to be sure. When it chooses to be. The Court only hears at most a couple hundred cases a year. Meanwhile, the lower courts hear thousands of cases over a wide range of issues. 99% of these cases will never make it to the Supreme Court. This means that, for most cases and many issues, the Circuit Court is the final arbiter of the law. Who makes it onto the lower courts is an issue of crucial importance.
And this is where filibustering Alito without being able to block the Nuclear option can kill us. The Nuclear option isnt just about SCOTUS. It's about the lower courts as well. Henry Saad, William Myers, Brett Kavanaugh. Those are the names of three judges who would have been confirmed, but who were blocked by Democratic efforts, and ultimately by the nuclear compromise. Ideologues, sometimes unqualified, more often just woefully out of the mainstream. I'm sure there is an entire stable of judges like them. The only thing that keeping those judges off the courts is the fear of the filibuster. In a post-Nuclear Option world, that barrier no longer stands.
But who cares if Democrats retain the filibuster if the Republicans can always threaten to go nuclear and force them to cave? That's a short-term analysis. The midterms are 9 months away, and pundits seem nearly unanimous in their assertions that it is setting up to be a good year for Democrats. Democrats have an outside chance of retaking a chamber or two. More realistically, they have an excellent opportunity to cut into the majorities of Republicans. Right now the spread in the Senate is 55 Republicans-45 Democrats (well, 44, but Jeffords votes with the good guys). In November, that number could very well be 52-48, or even 51-49. That would make the Nuclear Option much more difficult to pull off. Instead of having to pull 6 Republican votes to preserve the right of the minority in the Senate, Democrats would only have to pull 2 or 3. That is something that seems much more feasible, especially with "RINOs" like Olympia Snowe and Susan Collins expressing their discomfort with the whole idea. A Democratic minority of 48 or 49, with the filibuster intact, would be in a much stronger position to keep radical judges off the courts.
So, think 51, not 41. 41 without 51 gets you Samuel Alito AND a host of lesser-known but still crucially important judges. A filibuster would be wonderful, and I hope it happens. But I hope Senate Democrats use it wisely, at least somewhat confident that they can stop what comes next.