January 9, 2006
Don’t Be Surprised to See a Filibuster

By John McIntyre

The cold war over the Alito nomination may turn very hot this week and Republicans should be prepared for an aggressive and very serious Democratic opposition that is looking for something more than a moral victory.

Two months ago I suggested that, politically, the Democrats had little option but to filibuster Alito. As the hearings begin today I don’t believe much has changed. If anything, the bounce back in President Bush’s poll ratings puts more pressure on the Democrats to fight. Had Bush’s numbers continued to fall and it looked as if the wheels were truly coming off his second term, Senate Democrats might have been more inclined to let Alito quietly through to restore the focus on Bush and his problems. But with the President fighting back and his approval ratings stabilized, the pressure on Senate Democrats to do something more than just vote "no" will be enormous.

Over the last two months, Senate Democrats wisely have held back much of their firepower so as not to appear they were just giving a knee jerk “NO” to anyone Bush would nominate after Miers. Given their minority status, Democrats have followed a smart strategy. First, they got the hearings pushed back into January, slowing the entire process down considerably. Last week they indicated that they will invoke their right to hold the judiciary committee vote over for one week, creating a further delay. (Though the nominations are very different, a similar strategy of delay was very effective with the Bolton nomination and played a big part in his eventual recess appointment.)

Expect Democrats to press Alito this week in a way they did not with John Roberts in the hope that relentless pressure will cause Alito to slip up or lose his cool - something Roberts never came close to doing. Failing a “mistake” by the nominee, Democrats will declare his inevitable “non-answers” to be unacceptable and will try to paint him as out of the mainstream and different than Chief Justice Roberts.

Initially, I thought a filibuster would be very unwise for the Democrats because it would gin up the Republican base and it was a fight that they at the end of the day simply don’t have the cards to win. However, Democrats want to keep their based fired up and they want to display a willingness to confront Bush and the GOP. A rerun of the Roberts hearings ending with a 58-42 vote for Alito (as opposed to 78-22 for Roberts) is nothing but a loser to their base and a huge conservative victory. The 5-4 majority conservative decisions Alito will be part of for the next 25-30 years won’t contain an asterisk at the bottom saying he only received 55 votes in the Senate.

Even though the odds are that a sustained filibuster would be met with a change in the Senate rules and Alito’s ultimate confirmation, an argument can be made that strategically it is good political move for the Democrats. If Reid can hold 40 votes and sustain a filibuster (a big if), Democrats would throw down the gauntlet to the GOP. While I think Frist has the votes today to ram though the “nuclear” option, there’s always a chance Democrats get lucky and find three GOP Senators (Warner, Specter, and McCain, perhaps) to join Snowe, Collins and Chafee in refusing to change the Senate rules.

Win or lose, a filibuster would energize the Democrats' base, and even if they fail to stop Alito's confirmation....how much have they really lost? They could say correctly that Alito was going to get through anyway. They would lose their ability to dangle the filibuster threat for the rest of the Bush term in respect to judicial nominees, but the potency of that weapon has already been significantly reduced. In the previous three years they already have maxed out what was politically acceptable with filibuster tactics on judicial nominations before the GOP leadership finally got serious about fighting back this spring. So if the Senate rule on filibusters did get changed, while Republicans may like it now, I suspect it is a rule change the GOP would come to regret.

In the long run the two seats per state make up of the Senate gives the GOP a significant edge in counterbalancing larger more populous Democratic states. Any diminution of Senate powers to the minority is not a good long-term move for conservatives. Things change in politics and it would not be hard to envision an environment in the next 50 years where Democrats win big in the House and Presidency, but the GOP holds on to 40-45 Senate seats and is in a position to frustrate left-wing policies and judicial appointments.

In the short term it is not at all impossible that the Democrats could pick up 2-3 Senate seats in 2006. If they got a handful more in 2008, they could be looking at a President Hillary Clinton and a very slim Senate majority – in which case Democrats might very much like the idea of a GOP minority without the filibuster weapon when it comes to Hillary’s judicial nominees. (Of course, just because Republicans might not institute the nuclear option when they are in control does not guarantee that Democrats would be as deferential to Senate rules and precedent when they are calling the shots.)

These next few weeks are in many ways the beginning of the ’06 and ’08 campaigns, and the Alito nomination battle will be a comment on the strength and unity of each party. If a filibuster is mounted we will see whether the GOP caucus is as aggressive and committed to winning as the Democrats. If we don't see a filibuster, I suspect that would be an indication that the Democrats are weaker and more divided than is commonly thought in Washington.

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