The Byrd Option Gets More Backing

Yesterday, Lindsay Graham stepped away from his foolish flirtation with the Democrats and warned that any attempt to filibuster a qualified nominee to the Supreme Court such as Samuel Alito — who had not yet been announced as the selection — would not qualify as an “exceptional circumstance”, and that Graham would then support the Byrd option eliminating the filibuster. Now on Hugh Hewitt’s show, we can add another of the Gang of 14, Ohio Senator Mike DeWine, who explicitly stated that he will vote for the Byrd option to end filibusters on judicial nominees. Radioblogger has the transcript:

HH: Your colleague on judiciary, Lindsey Graham of South Carolina, said yesterday on Face The Nation, that if Democrats attempt to filibuster, he will work to break it, meaning that this is not something the Gang of 14 had in mind. Do you agree with Senator Graham that this is not a filibusterable nomination?
MD: Oh, I absolutely do. I mean, this is not under what our definition of extraordinary circumstances is. This is a nomination that’s clearly within the mainstream of conservative judges. This is someone who has a long, distinguished record, someone who I would classify as kind of a classic conservative justice, who believes you should decide each case one at a time, you should not be a judicial activist, you should not be intrusive, that a judge should kind of sit back, wait for that case to come, and then make a decision on the case, but not be really a legislator. And really, that’s what this judge’s record would, at least seem to me, to show.
HH: So absent any extraordinary revelation, is it fair to say, Senator DeWine, that if the Constitutional option has to be deployed, that you will vote for it?
MD: Oh, I certainly would. I would think, though, that this will not be necessary. I just…it’s hard for me to envision why anyone would think that you would have to filibuster in this case, or why they would think it would be, as we defined it in our group of 14, that Lindsey and I were a part of, why we would define it as extraordinary circumstances.
HH: You know, I think if even one more member of that group comes out and says this is not a filibuster occasion, it’s over. I don’t think the Democrats will attempt to then, because enough Senators will be on the record as supporting the Constitutional option.

This may not be the explicit addition to which Hugh refers, but the original Republican sellout sounded as though he would not oppose the Byrd option, if it came down to it. Senator John McCain, who became the first Republican to announce that he would oppose the rule change during the spring and later helped form the Gang of 14 to avoid the confrontation, told Sean Hannity that he wanted to wait until the hearings to make up his mind, but that at this point he didn’t see any exceptional circumstances either.
That at least sounds like an abstention — giving the Republicans a 50-49 split at worst on the Byrd option. Chaffee, Snowe, and Collins will probably never vote for the Byrd option, but John Warner will probably go with Frist, especially on a Supreme Court nominee like Alito. Even if he doesn’t, the re-enlistment of DeWine and Graham makes the passage of the rule change inevitable.
That, of course, will keep it from getting invoked altogether. Despite the hue and cry coming today from Harry Reid and Chuck Schumer, the rest of the Democrats will not follow them over a cliff merely to protect this swing seat, not with the midterms around the corner and two successive losses in the electoral cycle due to Dacshle’s strategy of obstructionism. Perhaps they would have tried it while Bush’s approval ratings kept dropping — but that trend has reversed itself after the Miers withdrawal, which reached a two-week high on Rassmussen’s daily polling. That indicates that a significant part of Bush’s drop may have come from his own base after the Miers nomination inspired a massive but short-lived outpouring of criticism from the right.
With his numbers coming up after the Miers withdrawal and the prospect of Iraqi security taking over Iraq by the midterm elections, the last thing Democrats need is more obstructionism on which the GOP can attack the red-state Senate Democrats in the election. They have a disadvantage already, and one of the three GOP seats that they could gain next year is an almost certain vote against the Byrd option (Chaffee). They run the risk of not only losing three more seats to the Republicans, but also losing one more “no” vote on a rule change that would disallow the filibuster on a later attempt — which they will need if Bush gets a third opportunity to appoint a Supreme Court justice.
Again, if most of the Democrats remain rational, they will make lots of noise but fail to fulfill a filibuster. In the end, they will have to take Alito and bitterly rue their decision to abandon Miers when they could have supported her and kept her nomination alive. They made the choice — especially Patrick Leahy and Chuck Schumer — to publicly ridicule Miers and her answers to the Judiciary Committee after Reid personally suggested Miers to Bush. They helped set the table for Alito, and now they should consider themselves fortunate not to have to square off against Janice Rogers Brown.