Among the reasons forwarded for not strongly opposing the Alito ascension to the Supreme Court, including the "we don't have the votes" reason (which would be a good one if folks would actually wait until the Democratic Caucus on Wednesday to find out), the "I disagree with him but he should sit on the Court" one, and the "maybe Alito is not that bad" one, the only one that merits a serious response is one I'll call the "Final Filibuster" rationale. According to this theory, forwarded by some cautious Democrats (and perhaps we can include
Senator Feinstein among them) the Democrats are approaching the Samuel Alito vote with the spectre of the "Final Filibuster" looming over them. The thought is that we've got just one shot at the filibuster before the Republicans invoke the nuclear option, so we have to make sure we're using it for the right cause.
This is completely misguided in my view. First, the final filibuster will not be the final successful filibuster, according to this thinking, because the Republicans will trigger the nuclear option. Which undermines their entire point. What they are saying is that the filibuster is meaningless because even a "successful" one will be nuked. Save it for Stevens's retirement? When the Republicans will override it anyway? What sense does that make? This argument in fact undermines the thinking of those who applauded the Gang of 14 compromise. Better to have fought the fight then if in fact you believed the actual use of the filibuster would be ineffective. Why "save" the filibuster now when it will be a toothless tiger anyway? If we can not use and defend a filibuster against Alito, who will we be able to use it against?
So it really comes down to the political ramifications of filibustering Alito. I would argue that there is no better time to risk this fight than now, with this nominee. Because the rewards in 2006 can be great. I'll explain why below the fold.
Samuel Alito isn't John Roberts. His long career has a paper trail, and that paper trail proves him to be an extremist. On privacy, on reapportionment, on executive power, there is no question that Alito is not in the mainstream. To quote
Harry Reid:
I have not forgotten that Judge Alito was only nominated after the radical right wing of the President's party forced Harriet Miers to withdraw. The right wing insisted that Justice O'Connor be replaced with a sure vote for their extreme agenda. Four days of hearings have shown that Judge Alito is no Sandra Day O'Connor.
Caution is a prerequisite for politics, and a motivation to be respected. Bomb-throwers don't last too long in Washington. But this juncture in American politics demands more than caution, and allows more than caution. I believe Harry Reid understands that better than anyone. So if all that matters is "politics" on this, does NOT filibustering make sense? I honestly don't see how. Is this a "crazy Deaniac" position? I don't think so. Let me cite to you an ex-Kossak famous for his hatred of all things Dean and "radical":
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? A GOP overreach could be turned into 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 Alito 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.
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.
I think Petey is dead on on the politics of this. Of course fighting Alito is a matter of principle AND real life concerns for me. But assume the worst. Assume the Republicans go nuclear. Petey nails the politics of that result.
Leading in to the 2006 election, we have a disastrous war with which the American public is becoming increasingly disillusioned. We have a president with a sub-40 percent approval rating, who is judged by the American public as stubborn and isolated. The Republican Congress, awash in scandal and incompetence, is even less popular than the President.
At the same time, we are witnessing an almost unprecedented effort by the executive to strip away the restraints created by the Constitution in the separation of powers. I would hope that every Senator--Democractic, Independent, or Republican--would recognize this threat, and would recognize the real threat Alito poses in his belief in the unitary executive.
In all of these regards, we are positioned to not only justify strong opposition to Alito, but to gain politically by fighting this nomination, by making the Alito nomination the nuclear battle. We have the opportunity to highlight the excesses and abuses of the Bush administration. We have the opportunity to shine a bright light on the extremist views of this nominee, positions that BushCo would have the public believe are "mainstream." This is the right nominee at the right time--fight the issue NOW, and make it an election issue for 2006.
And what do we have to lose? A great deal, in my opinion. We risk the further alienation of the Democratic party base. Fail to fight and we demoralize the Democratic party base, we lose politically. And we lose the politics of contrast. We may not have 41 votes for filibuster. But it sure makes a lot of sense to find out before the Feinsteins of our caucus decide not to fight for Democratic principles with every tool in our arsenal.