Pepper, writing over at Ezra's (type) Pad:
I have no illusions that Alito can be stopped at the last minute…
I've seen that a lot in the past few days, and I just have to ask: Why is there no hope that Alito can be kept off the United States Supreme Court? (More after the flip.)
Yes, I know that no Republican has announced opposition to Alito, and that three Democrats have announced support, which makes the vote tally 58-42 in favor of confirmation. But we also know that the day before the Judiciary Committee voted, 37 senators said they'd support a filibuster.
It takes 41 votes to sustain a filibuster, unless Bill "Kitty Kevorkian" Frist decides to break the rules of the Senate and close down the filibuster. As many others have pointed out, there is no way under the Senate rules to use a simple majority of 51 votes to overturn a rule that cloture requires 60 votes. They know it's against the rules. They're just going to put Dick Cheney in the chair and have him rule in their favor anyway and be done with it. If 41 senators vote to continue debate, then either debate continues, or the Republicans have to show - in an election year - that they have even less respect for rules and laws than the public already believes. That's a narrative that's easy to exploit.
So all the opposition to Alito needs is four more votes, and at least five more senators are going to oppose the nomination. There still might be some swing Republicans willing to demonstrate independence from the Bush Administration and vote it down, too. If Alito's nomination eventually gets a vote in the Senate, he's not going to be confirmed by a margin greater than 59-41. That's enough to sustain the filibuster unless Frist and Cheney move to break the rules for him.
And who is it they'd be breaking the rules for? A man who thinks the President's power cannot be limited. A man who thinks pregnant women should be forced to bear children upon threat of imprisonment. A man who, except for a meaningless margin of error, always picks corporations over workers and individuals they harmed, who always picks police over defendants no matter how egregious the error, and who has a demonstrable history of lying to Congress under oath to get the job he wants.
The media narrative that Democrats "can't stop Alito's confirmation" is a gift from God, because as soon as the filibuster starts, the news shows are going to scramble to get any senator supporting it onto their show to explain why they're making such a "futile" political move. The Senators respond by pointing out that Alito is a truly repressive and reprehensible choice to fill Sandra Day O'Connor's seat, and that his values conflict with those of a clear majority of Americans. They'll say, "Whether we're successful or not, it is the right and moral thing for me to do everything within my abilities to keep Samuel Alito off of the United States Supreme Court, and that's what I'm doing."
Suddenly, the narrative that couldn't break through earlier is front and center, as is the fact that Frist - one of the weakest majority leaders ever, and about to run for President of a divided country - has to throw the rules out the window to quash dissent and put Bush's yes-man on the court. I'll bet you the traditional quarter that Frist won't do it. If he does, he knows he's kissing his bid for the Presidency good-bye, and he's already announced he's not running for re-election to his Senate seat this year. If Frist pulls the illegal "nuclear option," he's ending his political career. Alito will rule so unpopularly that the voters will punish him for putting him on the Court. Frist knows this.
With the nuclear option unlikely, we're back to 41 votes to keep Sam Alito off the Supreme Court, all happening while his opposition gets plenty of air time to explain what's happening. A few demonstrations in Washington won't hurt, either. If a filibuster lasts more than one day, the non-profit groups will get involved, and they might anyway if the conservative money machine starts running deceptive TV ads in favor of Alito. The battle drags on, and the country becomes interested in exactly why this man is worth the fight. As they learn, they turn against a nomination that they didn't really care much about before, and the battle changes.
So again, I ask: why not? Why can't the filibuster work? All the evidence suggests it has a better-than-average shot at keeping Alito off the Supreme Court. Why can't it work?
(Cross-posted from my own blog upon suggestion that people might actually see it here.)