In a New York Times report that preceded the nomination of Samuel Alito, one of the Republican Gang of 14 warned the Democrats that any political objections to Alito or any other nominee would not rise to the level of “exceptional circumstances,” and that a filibuster would break the agreement that kept the Byrd option off the table:
Mr. Reid had already said he would object to the selection of Judge Luttig or Judge Owen. And on Sunday, he did not rule out the possibility that Democrats would try to block a nominee by a filibuster or refusing to close debate and vote. “We are going to do everything we can” to see that the president names “somebody that’s really good,” Mr. Reid said.
But 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.”
Mr. Graham’s warning was significant because he played a crucial role earlier this year in helping block a Republican effort to change the Senate rules – known as the nuclear option – so that Democrats could not filibuster judicial nominees. His comments on Sunday indicated that this time, he would support that rule change; Democrats have threatened to retaliate with a battle that could snarl Senate business for months.
As I mentioned below, Reid caused this problem in part because he did nothing to rescue his own suggestion for the court opening until Miers withdrew her nomination. He had specifically mentioned Miers as a compromise candidate that Democrats would not oppose, and then allowed Schumer and Leahy to belittle her responses in an echo of the conservative opposition that quickly coalesced around Miers. Reid and his caucus could have rescued the most moderate candidate they were likely to see from this administration. The Democratic delight in Bush’s predicament over the last three weeks undoubtedly played a part in the President’s decision to discount any further advice from Harry Reid.
The Democrats might try to filibuster, but his candidacy does not have the same fire that may have come with Janice Rogers Brown. The Democrats feared a Brown appointment; they would have had to do a character assassination on a jurist with a clearly inspirational life story as well as a solid track record and a strong conservative record. Alito has a more mild personality and will come across much like John Roberts in the hearings, but his self-effacing style will still have some bite. Building a hearing record for obstructionist mischief on the floor will probably blow up in the faces of the Judiciary Democrats, especially Kennedy, Schumer, and Biden, who made themselves look like idiots during the Roberts hearings.
I expect that the Democrats will get 30-35 votes in favor of a filibuster once Alito gets out of committee. If they do consider a filibuster, too many of them will realize that Stevens might get replaced during this term (he’s 85 years old). They need that potential stop on Senate business to protect a genuinely liberal seat on the Court — and enough of them won’t agree to tossing it aside before the 2006 elections, when they might narrow the gap in the Senate, in order to keep Alito off the bench. They also won’t want to fight over obstructionism again during the next cycle, or the Democrats might well lose more Senate seats in the midterms.
Expect Alito to get confirmed, 65-35.