Today's Boston Globe quotes Ben Nelson reporting that no one in yesterday's Senate Democratic meeting made a case that extraordinary circumstances prevail in the Alito nomination.
The language that the Gang of 14 used in their agreement to preserve a limited ability to filibuster is intentionally vague. But there is a very strong case that the sort of extraordinary circumstances the agreement covers, do prevail today.
The threshold for "extraordinary circumstances" cannot be high. If most observers agree that a nominee or the circumstances of a nomination are suspect, there is no reason to filibuster: there will be no majority to confirm.
More thoughts and a list of the extraordinary circumstances we face, below the fold.
Conversely, circumstances that occur in
every judicial nomination cannot be fairly considered extraordinary. (I respectfully disagree with Armando's formulation that "SCOTUS is Extraordinary," at least in terms of the agreement - if the Gang of 14 believed that any SCOTUS nomination inherently justifies use of the filibuster, they would have said so plainly.) For example: ducking the same questions that earlier, successful nominees have ducked is not extraordinary.
The phrase "extraordinary circumstances" covers more than the qualifications of the nominee. Narrower language - e.g., "extraordinary questions regarding the nominee's views or history" - was available and not used. "Extraordinary circumstances" is broad enough to encompass an unusual political climate or a contentious issue expected to come before the Court: such circumstances could justify a filibuster of a nominee who would be given a quick vote in normal times.
Many such circumstances face the Senate today:
- The Administration is challenging Congressional authority to outlaw torture. It is using the extra-constitutional `signing statement' tool promoted by Alito to do this. This matter is likely to go before the Court, and a nominee who promoted this tool is likely to try to undermine Congressional authority.
- The Administration is separately claiming war powers that void FISA Court oversight and allow it to spy on American citizens. The Administration cites the same language - the Unitary Executive - that Alito has promoted, although there are significant discrepancies in definition. With the rule of law at stake, the connection troubles many reasonable people.
- With the retirement of former state senator O'Connor, the Supreme Court will have no Justice who has ever been elected to any public office for the first time in its history. This lack of experience in the give-and-take of the legislative branch risks making the Court an ivory tower institution.
- A nominee who did have elective experience - former school board member Harriet Miers - was withdrawn after right-wing religious groups attacked her. The influence demonstrated by these groups puts a cloud over subsequent nominations.
- Alito has refused to use language that Chief Justice Roberts found suitable in describing Roe v. Wade as "settled law." Roberts made no commitment on future Court cases in using that language. Reasonable people may conclude that Alito's refusal is a signal to abortion opponents that he intends to overrule Roe.
- Many reasonable people find Alito's claim that he a) listed CAP membership as a job qualification fifteen years after joining the group, but b) twenty years later has no recollection of the group, not credible. If one reluctantly concludes that he was lying about this to the Senate, one must also conclude that he must not be confirmed.
In summary: there is a major battle brewing to interpret the Constitution to favor greater executive power at the expense of legislative oversight, and Alito is clearly a proponent of a stronger executive. By itself, that constitutes an extraordinary circumstance - and there are many other troubling aspects of this nomination.
A filibuster is warranted by the Gang of 14 agreement. Democrats who believe Alito should not be confirmed must support it.