Patterico's Pontifications


Needed: One More Senator (Update: We Got Him!)

Filed under: Judiciary — Patterico @ 7:39 am

If Democrats try to mount a filibuster against Judge Alito, Republicans can win if they hold their coalition together and get at least two votes from the Gang of 14 to trigger the nuclear option.

With the nomination of Judge Alito, we already know that Lindsey Graham will provide one of those votes:

Senator Lindsey Graham, Republican of South Carolina, fired back Sunday, saying that if the Democrats staged a filibuster against Judge Alito or Judge Luttig because of their conservatism, “the filibuster will not stand.”

Courtesy of Hugh Hewitt, here are the names, e-mail addresses, and telephone numbers of the other Republican members of the Gang of 14:

Senator McCain
(202) 224-2235

Senator Warner
(202) 224-2023

Senator DeWine
(202) 224-2315

Senator Chafee
(202) 224-2921

Senator Snowe
(202) 224-5344

Senator Collins
(202) 224-2523

And, in terms of holding the coalition together, here is contact information for two other key Senators (also courtesy of Hugh):

Senator Hagel
(202) 224-4224

Senator Specter
(202) 224-4254

It’s time to put the pressure where it belongs: on the Senators. Let’s get busy!

UPDATE: Question for Professor Bainbridge: if the Democrats were to filibuster Alito, would you support the nuclear option?

Just askin’.

UPDATE x2: Hewitt says DeWine is on board as well. It’s all over except for the shouting.

31 Responses to “Needed: One More Senator (Update: We Got Him!)”

  1. Thanks for these (and to Hugh) — I blame McCain & the Gang for “Stealth” Roberts (great) and Miers (OK).

    It’s time to refight Bork, it seems.

    Will Alioto really overturn Roe? If it’s clearly yes, can he be confirmed.

    Tom Grey - Liberty Dad (831e24)

  2. Remember, though: Dems need the votes to avoid cloture before we need the votes to nuke them. I think their coalition will crack before we need to go there.

    Crank (5f5694)

  3. Forget Roe!

    If Sam Alito is half the judge he seems to be, then he’s well qualified for SCOTUS and deserves a fair hearing, and an up or down vote exclusively on his qualifications. No side issues.

    The SC can deal with Roe as it comes up in the orderly process of going about the business of the court.

    Black Jack (ee9fe2)

  4. Crank, you’re on the money. Only 22 no votes for Roberts. Dems will be lucky if they can muster 25 against Alito.

    TNugent (58efde)

  5. The preferred way to defeat the filibuster is the way nobody talks about. While the Democrats are in filibuster, take the fight to the media. It’s a pretty easy case to make that Democrats are behaving like children for holding up the Senate for a reasonable candidate like Sam Alito. They will give up. Why are Republicans so afraid of filibuster, anyway?

    Shredstar (532850)

  6. But the media is on their side (on this issue)… they will simply ignore – or give little coverage to – the cries against a filibuster. They will flock to the soundbites – and the libs will have the better soundbites – to their way of thinking.

    The media cannot ignore a “family values” issue coming from the conservatives, but they will ignore an abortion issue coming from conservatives in favor of Shumer’s, Pelosi’s, Kennedy’s and Clinton’s statements on the issue. The media is in lockstep with the liberals on this issue. To the point that they cannot be used to take this one to the public.


    MOG (29d168)

  7. Dear Senator,

    I recognize that this will go against the grain, but please seriously consider not opposing Judge Alito. The man will clearly overturn Roe, but he is also clearly qualified.

    The Republicans are so overextended, the way back to power is to show just how they will react on the crucial issues. This is one such case. Going off the deep end – badgering 90 year old mothers – will set us back even further than the actual loss of Roe. If we’re trying to make the case that the Republicans have lost the moral high ground – we can’t deliberately forsake exactly that same ground for a foregone conclusion.

    Your constituent,

    Ok, I can’t think of anything better to send to Patty Murry and Maria Cantwell. 😉

    Al (00c56b)

  8. David Corn in The Nation says that the Democrats have to fight this nomination.

    But he also says they should go straight to the point and object to Alito on issues. Some interesting quotes:

    “There is no question that Alito is qualified, in that he has been an assistant solicitor general, a deputy assistant US attorney general, a US attorney and an appeals court judge. He is reputedly intelligent and scholarly. There will be no major disagreement over document releases; there are fifteen years of appeals court decisions for his friends and foes to scrutinize. That leaves the Democrats one avenue of attack: Alito would be bad for America.”

    “But the Democrats need to do more than rely on the usual extremist-baiting. They have to state clearly that they are opposing Alito–whose philosophical similarity to Justice Antonin Scalia has earned him the nickname “Scalito”–for policy reasons. The Supreme Court, they should argue, keeps becoming more significant in the lives of Americans, deciding critical matters (privacy rights, religious controversies, environmental laws, assisted suicide and at least one presidential election). Consequently, Democrats should say they are now going to judge potential Justices on the basis of where these men and women may lead the nation.”

    In other words, he’s saying the Democrats should come out forthrightly in favor of an activist Supreme Court.

    I wonder if they will.

    Steven Den Beste (b57a45)

  9. Hey I am still waiting for the up and down voter on Ms. Miers.

    up or down hypocrisy (1a97a6)

  10. Why are Republicans so afraid of filibuster, anyway?
    Comment by Shredstar

    Because they don’t believe that Republicans will maintain majority status indefinitely. What goes up must come down.

    John Gillnitz (58f194)

  11. I hate activist judges, especially those 5 who decided it really was the SC business to decide how a state should count votes.

    UR 2 Funny (1a97a6)

  12. DeWine has already essentially come out in favor, so I’d be surprised to see a consensus position out of the G-o-14.

    Hey, UR 2 Funny, it was SEVEN justices, not five, who recognized that there was a serious voting rights equal protection issue with the FlaSC’s made-up “decision”.

    Kurmudge (014945)

  13. We wanted a fight. Looks like we got one. Or, more precisely, a chicken game.

    One of my (many) objections to Harriet Miers’ nomination to the Supreme Court was my belief that Bush was ducking a fight with the Democrats that the time had come to wage:… we’ll never again have as good a chance (af7df9)

  14. But K, why do you think these little inconvenient facts matter? We all know Bush stole the election in 2000 then, Good Golly Miss Molly, he did it again in 2004, thanks to Halliburton rigging all the voting machines so they registered Bush votes instead of Kerry votes. Don’t you right wing wackos know anything?

    Harry Arthur (40c0a6)


    We wanted a fight. Looks like we got one. Or, more precisely, a chicken game.
    One of my (many) objections to Harriet Miers’ nomination to the Supreme Court was my belief that Bush was ducking a fight with the Democrats that the time had come to wage:

    … we’ll never again have as good a chance as we do right now to fight and win the battle to, as Henninger put it, “confirm someone who had participated in this conservative legal reconstruction and who would describe its tenets in a confirmation hearing,” so that that “vote would stand as an institutional validation of those ideas. This would become a conservatism worth aspiring to.” Indeed.

    This is a fight we can afford. It’s the right fight. Those of us who oppose Miers need to keep on fighting. (Link)

    It looks like the Democrats will accomodate us. Charles Schumer, for example, proved once again that the most dangerous thing one can do in Washington is to stand between Schumer and a microphone. Indeed, Alito prompted the very worst in Schumer:

    Like Rosa Parks, Judge Alito will be able to change history by virtue of where he sits. The real question today is whether Judge Alito would use his seat on the bench, just as Rosa Parks used her seat on the bus, to change history for the better or whether he would use that seat to reverse much of what Rosa Parks and so many others fought so hard and for so long to put in place.

    In other words, Schumer wants you to believe that Alito will send Rosa Parks back to the back of the bus (presumably after exhuming her). And then Schumer has the gall to call Alito extreme and divisive! Of course, Schumer does have expertise in spotting an extreme and divisive individual, since he sees one in the mirror every morning.

    So: Let’s get ready to rumble!

    How do we fight this battle (asks Patterico)? I’ve speculated before that one might appropriate model the nomination process as a chicken game:

    Think James Dean. Here’s one description:

    Two hooligans with something to prove drive at each other on a narrow road. The first to swerve loses faces among his peers. If neither swerves, however, a terminal fate plagues both.

    How do you win a chicken game? If I am one of the drivers, I need to convince the other driver that I am not going to swerve. In his book The Strategy of Conflict, Thomas Schelling suggests a precommitment strategy: i.e., “power through binding oneself.” In order to convince the other driver that I will not swerve, I need to use a precommitment device. What then do I do? The classic answer is that I make a big deal out of visibly throwing my steering wheel out the window. It sends the following signal to the other driver: “I’m going to win at all costs. I can no longer swerve. So if you want to live, you have to be the one to swerve. What’s it going to be? You have the last clear chance.”

    If I’m right that the chicken game is a useful model for the nomination impasse, the task … is to figure out the equivalent of throwing the steering wheel out the window.

    I support the right of Senators to filibuster judicial nominations, albeit while believing it should be limited to rare and exceptional cases. I supported the filibuster deal largely because it limited the filibuster to such cases.

    The so-called Gang of 14 should conclude that Judge Alito’s nomination is not the exceptional case that would justify a filibuster. He is staunchly conservative, but is clearly in the Scalia and Thomas mold, and as such is well within the mainstream of modern legal thought. To filibuster Alito is to say you would have filibustered Scalia and Thomas.

    What if the Democrats in the Gang of 14 go wobbly on the deal? At that point, they’ve started a chicken game. In response, the GOP members of the Gang of 14 should throw the steering wheel out the window by committing in writing to voting to support the elimination of the filibuster. My guess is that the Dem Gang of 14ers will then cave, thereby preserving the filibuster while also confirming Alito, which is my personal win-win scenario.

    In sum, the nuclear option of repealing the filibuster is kind of like nuclear weapons. It’s a deterrent that should never be used. Indeed, one could say the same thing about the filibuster itself. You keep it in reserve in hopes that you never need to use it.

    Steve Bainbridge (6403c1)

  16. PS: I would have emailed this to you, but I couldn;t find your email address.

    Steve Bainbridge (6403c1)

  17. If the chicken game had a world championship contest, it would always result in the same thing. Neither contestant would ever swerve, resulting in a head-on crash and both would die in a horrible fireball.

    The metaphor is inappropriate.

    Shredstar (532850)

  18. In response, the GOP members of the Gang of 14 should throw the steering wheel out the window by committing in writing to voting to support the elimination of the filibuster.

    This sounds like progress. You’re willing to support having Republicans *say* they will seek the nuclear option.

    But, while I appreciate your reply, I think you’re still avoiding a direct answer to my question. What if the Dems don’t back down? What if it becomes clear that, unless the nuclear option is actually exercised, there will be a successful filibuster, and Sam Alito will never make it onto the Court?

    The key Senators have come to you, Steve Bainbridge, and have told you that they’ll do whatever you say. What do you tell them? Pull the trigger? Or shrug your shoulders, sigh, and nominate a new candidate?

    I really want to know the answer. What would you tell them to do?

    Patterico (e748e9)

  19. I suppose Bush’s nomination of a far-right zealot for Supreme Court will push treason-gate off the front page for a few days at least. Ho hum.

    Randy (96cfd6)

  20. Judge Alito — Breaking News!

    According to Hugh Hewitt, Charles Schumer is “slowing” the nomination of Judge Samuel Alito to the Supreme Court; I haven’t yet seen this in print, but he did say that “it is a question” whether Alito would “reverse much of…

    Big Lizards (fe7c9d)

  21. Whether there’s a filibuster depends on whether the Democrats can count to, and whether teh Republicans can count on, fifty. Even if Chuch Schumer concludes that there is no one worse in America for this position, if there are enough Republicans to engage the nuclear option, it simply doesn’t make sense for the Democrats to sacrifice the filibuster option forever.

    The Democrats are hoping to pick up a couple of Senate seats in the 2006 elections: if they filibuster Mr Alito, and the nuclear option is used and filibusters on judicial nominations are forever out of order, they’ve blown it. If they let Mr Alito pass, and pick up two Senate seats in the 2006 elections, they’ll have enough to defeat an attempt at that option in 2007 and 2008. And then they have to pray that Justice Stevens doesn’t retire in 2006!

    Dana R. Pico (a9eb8b)

  22. SDB – Classic. Corn thinks the Dems should discuss how the Justices should “lead the nation.” We can counter that they shouldn’t.

    Crank (5f5694)

  23. It’s all over except for the shouting.

    Um, what if McCain finds other Senators to join his exclusive club?

    Tillman (1cf529)

  24. Wow. I detect a surprising large noise from the left. There’s a great gnashing of teeth and tearing at cloths going on over there right now – just cruise the blogs if you dare.

    Dwilkers (a1687a)

  25. I think you will see Senator McCain joining the nuclear option club if it comes to pass. The Miers fiasco, if nothing else, has proven the conservative base is not to be taken for granted. McCain has presidential ambitions. He can’t get there from here unless appeals more to the conservative base. Playing to the Dems, as he has done, will do him no good in the primaries.

    Conservatives admire people with guts.

    Corky Boyd (a8cc75)

  26. If the Dem Gang of 14 break the deal, there have to be consequences. So, yes, if – but only if – the Dem 7 renege, I would support pulling the trigger on the nuke option as a last resort. There has to be a remedy for breach of contract, after all.

    Steve Bainbridge (1c3d94)

  27. There has to be a remedy for breach of contract, after all.

    And, by analogy, that entails rewriting contract law by fiat? Tell that one to your mortgage broker.

    The Republicans have chosen war, and will get shame.

    ahem (d41031)

  28. Nonsense ahem,

    GWB has nominated a well qualified conservative Judge for SCOTUS. That’s all, no decelerations of war, no attempt to take over the world. It’s simply politics as usual, you know, the winners get to run things. That’s how electoral politics works in a republic.

    The Left is apoplectic at having to face the consequences of losing the last two elections. If you have a problem with that, take it up with the voters.

    Conservatives have chosen to support their President, and Dems have decided to yell, scream, and throw a tantrum. Republicans have not chosen war, Dems have, and have covered themselves in shameful duplicity.

    You don’t have to accept my take, let’s see how it plays out in 2006. I’m willing to let the voters decide, again, and again, and again.

    Black Jack (ee9fe2)

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