For the past year we've heard nothing except it takes 60 votes to pass a healthcare bill in the Senate. But just a few short years ago, there were rumblings of a Democratic filibuster to prevent the nomination of a man considered to be a radical activist judge of whom Ted Kennedy said:
The record of Judge Alito is clear and ominous.
The Senate Democrats could have prevented his nomination. They could have done exactly what the Republicans do when in the minority and enforced the rule of 60. They had 41 votes to filibuster the Senate. But they folded. Why?
Join me after the fold.
The first rumors that the Democrats might not filibuster Alito's confirmation began to surface at DailyKos with this diary by Dana Houle:
"I do not see a likelihood of a filibuster," said Sen. Dianne Feinstein, D-Calif. "This might be a man I disagree with, but it doesn't mean he shouldn't be on the court."
She said she will not vote to confirm the appeals court judge, based n his conservative record. But she acknowledged that nothing emerged during last week's hearings to justify any organized action by Democrats to stall the nomination.
Dianne Feinstein made the first break.
Then the diarist, Dana, actually began to spin why the Democrats would fail the American people in what I can only describe as the first "11th dimensional chess" defense:
Why wouldn't most of the Democrats filibuster Alito? The entire point of the Nuclear Option battle was to reserve the filibuster so Democrats could use it to prevent the court from being tipped into the hands of a Scalia-inspired majority. Alito will almost certainly side with Scalia and Thomas far more than did his predecessor, Sandra Day O'Connor. I was thinking about that the other day, in wondering why there were no clear signs that the Democrats would sustain a filibuster of Alito's nomination. And then it hit me; is it possible that the Democrats have calculated that Alito doesn't represent a net change on the court?...
...Therefore, while there seems to be sound reasons to expect Alito to join the right wing radicals on the Supreme Court, if one accepts that Roberts will be an O'Connor-like swing vote--I'm not sure that's correct, but if one accepts the theory--then the swap of Rehnquist and O'Connor for Roberts and Alito is largely a wash. Alito may be marginally worse that Rehnquist, but Roberts, as Chief Justice, may be about the same as O'Connor, but with the higher status as Chief Justice.
So that was the diarists lame attempt to rationalize a reason why the base should not be outraged that the Dems were caving in and not filibustering a person who was obviously a radical activist judge. It's amazing how far people will reach to find any shred of an excuse not to be outraged at the Democrats for lacking a spine. It's amazing how far they'll reach to provide the Dems even the flimsiest of cover.
And Dianne Feinstein? What was her excuse? Georgia10 summed Feinstein up pretty well:
Feinstein last week on Fox News Sunday:
"If I believe that he was going to go in there and overthrow Roe, the question is, most likely, yes [that would merit a filibuster]."
Feinstein today:
"I do not see a likelihood of a filibuster," said Sen. Dianne Feinstein, D-Calif. "This might be a man I disagree with, but it doesn't mean he shouldn't be on the court."
Alito before the hearings:
I am particularly proud of my contributions in recent cases which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion.
Alito at the hearings, responding to Feinstein's line of questioning about Roe and stare decisis:
"The Supreme Court has said that this is a question that calls for the exercise of judgment. And they've said there has to be a special justification for overruling a precedent. There is a presumption that precedence will be followed. But it is not the -- the rule of stare decisis is not an inexorable command.
In short, as Georgia10 pointed out, Dianne Feinstein didn't have a legitimate reason to break ranks with the filibustering Democrats. By all rights, she should have been up at the front of the line of those who wanted to filibuster Alito.
Did we go after Feinstein? Did we start berating the woman who voted for Bush’s war in Iraq, then later lied to her constituents by claiming she was misled?
"This is far different from the statement Feinstein made to me in the summer of 2002, when she acknowledged that the Bush administration had not provided any convincing intelligence to back up its claims about Iraqi WMD."
Did we point out what a sellout Dianne Feinstein has been?
Time and again, not only does she vote in favor of the most right-wing aspects of the Bush agenda, she uses her alleged expertise in areas of intelligence to pressure or give comfort to other Democrats wanting to do the same. Several of the 16 Democratic Senators who voted in favor of Bush's FISA bill in August, such as Jim Webb, cited assurances by Feinstein that she had obtained Secret Information as a member of the Intelligence Committee which proved how necessary this bill was. Similarly, as a member of the Intelligence Committee, she was one of the Democratic leaders urging the confirmation of Gen. Michael Hayden as CIA Director notwithstanding the central role he played as NSA Director in Bush's illegal surveillance programs.
Her primary allegiance is to the Beltway power system and her overwhelming affection is reserved for Beltway power brokers who are her true colleagues and constituents.
No. Instead, the first instinct was to come up with some 11th dimensional chess answer to why the Dems aren’t standing firm against Alito.
Then Robert Byrd and Tim Johnson broke ranks. As Kos reported
So why did we lose it?
A multimillionaire businessman entered the GOP race to challenge Sen. Robert C. Byrd on Wednesday, hoping to deny the 88-year-old incumbent Democrat a record ninth term.
John Raese, 55, said he would campaign on a platform touting free enterprise and reduced regulation, among other issues. "What I'm going to run on is a rebirth of capitalism," he said.
The National Republican Senatorial Committee heralded the filing by Raese, a former state GOP chairman who has sought office before.
Though four other Republicans are running in the party primary, the GOP committee called Raese "the first financially credible opponent Byrd has faced since 1982."
Raese's last major foray into election politics came nearly 18 years ago. With narrow losses each time, he ran against Sen. Jay Rockefeller, D-W.Va., in 1984 and challenged then Gov.-Arch Moore in the 1988 GOP primary.
Good timing for the GOP on that announcement.
I’m sorry, but am I missing something? Did Byrd and Johnson actually believe that by not standing up against nominating an activist judge that they’d lose voters? They actually believed the best course to getting reelected was to cave to Republican demands? Byrd who hasn't lost an election since man invented fire is going to break ranks with the dems and not filibuster a blatantly activist nominee because someone decided to run against him? Really Kos?
Johnson, the same democrat who voted for Bush’s tax cut for the wealthy doesn’t deserve our condemnation for breaking dem ranks? He gets an excuse? He gets provided a cover story?
Byrd, the same democrat who filibustered against the Civil Rights Act wouldn’t filibuster against an activist right wing judge? This is the same Byrd who voted against gays in the military and voted to limit gay marriage. This is the same Byrd who is against affirmative action. The same Byrd who praised Bush’s choice of John Roberts.
The same Byrd who voted against Thurgood Marshall.
But instead of railing against Byrd, demanding that he get in line with his fellow Dems, Kos laments that it was all a matter of "good timing for the GOP"
Did we threaten to run primary challenges against any of these people? Even when Johnson was later one of four Dems to actually vote for the confirmation of Alito? No. There wasn’t even serious discussion of such an option on DailyKos. In fact, Dkos frontpagers actually campaigned for Johnson in 2008:
And tonight he'll have his first public appearance at a "Thank You, South Dakota" event in Sioux Falls. Can't make it to Sioux Falls by 4:30 today? You're in luck. You can watch it live at Welcome Back Tim, and sign a virutal welcome back card. Or you can help boost Sen. Johnson's campaign fund.
Now don’t get me wrong. I’m not saying Byrd is a demon or something. This is the guy who stood up to Bush’s lies to get us into Iraq. The guy who voted against Geithners confirmation to the Treasury. What I’m saying is that when the Dems were united, they could have prevented Alito from being confirmed. When some of them broke ranks, instead of being outraged that Dems were breaking ranks. Instead of calling them on the carpet and bringing real HEAT against them. Instead of bringing up Byrd’s past misdeeds, such as his vote against Thurgood Marshall and now his vote against filibustering Alito, the Dkos community was quick to grasp for excuses as to why this dem or that dem had to do what they were doing.
That’s simply not acceptable.
Look at the price we pay now for not raging against the machine that is the Democratic Party back then.
When you play for stakes this high, you must play for keeps. There’s no half-heartedness. There’s no points for being nice. Every misdeed Byrd ever did should have been dredged up against him and every good he ever did forgotten in that moment. Because it was a critical moment, perhaps the most critical moment and we could not afford to give dems cover for backing down.
Yet that’s exactly what we did and that’s exactly what some Kossacks keep doing and that’s exactly what we have to stop doing if we’re going to ever be able to change this country’s course.
