UPDATE: Late day news – Durbin, Reid, Feinstein, Wyden are switching now to vote No on cloture come Monday.
The magic number is 60, not 41, on Monday. Nearly all recent judicial nominees, for lower court and SCOTUS, gained this level of support, either for cloture or for the actual nomination.
It is rare for a court nominee to prevail with less than 60 "yeas." If some Democrats would rather abstain than vote no for cloture, then Frist has to pull together a bipartisan consensus for this nominee, as many prior appointees have needed in the past.
Here's an example. In '93, the motion to move to a vote for Clinton's nominee Assistant AG Walter Dellinger failed because it had 59 votes, not 60, even though there were only 39 (Republican) nay votes to deny cloture.
The Republican's successful filibuster of Dellinger held for 2 successive cloture votes.
The Dems needed to drum up more support for the nominee.
The Republicans stopped filibustering Dellinger once they knew he had more than 60 votes to approve. (I don't think they called for a 3rd cloture vote, at least I don't see it in the roll call record.) They just did not object to moving to a vote once the Dems mustered more than 60 with a whip-count.
Links to the roll-call votes are in my May 2005 diary here, scroll-or-"edit-find" Dellinger for the detail.
We should prevail on some of the less-than-fervent opponents of Alito (Salazar, Landrieu, ...) to vote "present" on cloture; then cloture would not succeed for awhile.
A delay of this nominee is warranted at least until we find out how the President's agencies were spying on ordinary non-terrorist citizens.
>> And why did the IRS last year start collecting party ID data on taxpayers?!
An outrage!! Who will check an unbridled presidency?
Vote no or "present," do not vote yes for cloture.
Remember, Stephen Breyer needed to overcome 2 Republican stymieing cloture votes before he could join the 1st Circuit Court in 1980. The first vote attempt by Democrats failed to win. The second vote succeeded, 68-28.
-->>> Then Breyer was confirmed 80 to 10.
Let Bush select a judge who can garner bipartisan support as well.