It's looking increasingly likely that the Democrats will have at least 41 "no," votes on ScAlito, i.e., the minimum number needed to launch a filibuster.  However, despite the fact that Democrats will have the power to launch the filibuster, it's looking sadly as if they will refrain from doing so.  

And that is too bad, because a filibuster will help Democrats prevail in the upcoming midterm elections.

The Media has declared that Alito's nomination is a sure thing since the first day of the Judiciary Committee hearings. And of course some Democratic Senators reinforced this narrative with some very clumsy and unfortunate statements. But a funny thing has happened on the way to this "easy confirmation." It turns out it is not so easy.

Senator Ken Salazar (D-CO) joins Senator Max Baucus (D-MT) as a Red State Dem voting No on Alito and not ruling out a filibuster. Here's  a part of Salazar's statement:

I will vote against the confirmation of Judge Samuel Alito to the United States Supreme Court. I am convinced, based upon a very careful review of his record, that Judge Alito will move the Supreme Court outside the mainstream of American law. Judge Alito's judicial philosophy will expand Executive power too far, hurt the checks and balances built into our Constitution to protect us all, and roll back important civil rights protections that were achieved in our country through the sacrifices of many.

So far, Ben Nelson of Nebraska, in a much expected move, is the only Dem to announce he will vote for Alito. As I wrote a few days ago, the first issue is do we have 41 Nos on Alito. Without that, filibuster is not a possibility. It begins to look more and more like there will be 41 Nos.

And that might explain why Senator Bill Frist has prohibited floor speeches on Alito.

Will the Media be forced to cover the ACTUAL issues surrounding the possible confirmation of Alito as a Supreme Court Justice? Maybe. More on the other side.

Today's Boston Globe quotes Ben Nelson reporting that no one in yesterday's Senate Democratic meeting made a case that extraordinary circumstances prevail in the Alito nomination.

The language that the Gang of 14 used in their agreement to preserve a limited ability to filibuster is intentionally vague. But there is a very strong case that the sort of extraordinary circumstances the agreement covers, do prevail today.

The threshold for "extraordinary circumstances" cannot be high. If most observers agree that a nominee or the circumstances of a nomination are suspect, there is no reason to filibuster: there will be no majority to confirm.
More thoughts and a list of the extraordinary circumstances we face, below the fold.

Among the reasons forwarded for not strongly opposing the Alito ascension to the Supreme Court, including the "we don't have the votes" reason (which would be a good one if folks would actually wait until the Democratic Caucus on Wednesday to find out), the "I disagree with him but he should sit on the Court" one, and the "maybe Alito is not that bad" one, the only one that merits a serious response is one I'll call the "Final Filibuster" rationale. According to this theory, forwarded by some cautious Democrats (and perhaps we can include Senator Feinstein among them) the Democrats are approaching the Samuel Alito vote with the spectre of the "Final Filibuster" looming over them. The thought is that we've got just one shot at the filibuster before the Republicans invoke the nuclear option, so we have to make sure we're using it for the right cause.

This is completely misguided in my view. First, the final filibuster will not be the final successful filibuster, according to this thinking, because the Republicans will trigger the nuclear option. Which undermines their entire point. What they are saying is that the filibuster is meaningless because even a "successful" one will be nuked. Save it for Stevens's retirement? When the Republicans will override it anyway? What sense does that make? This argument in fact undermines the thinking of those who applauded the Gang of 14 compromise. Better to have fought the fight then if in fact you believed the actual use of the filibuster would be ineffective.  Why "save" the filibuster now when it will be a toothless tiger anyway? If we can not use and defend a filibuster against Alito, who will we be able to use it against?

So it really comes down to the political ramifications of filibustering Alito. I would argue that there is no better time to risk this fight than now, with this nominee. Because the rewards in 2006 can be great. I'll explain why below the fold.

Fred Hiatt's Washington Post Editorial Board, in a move that could surprise no one who is familiar with its Bush loving ways, urged the confirmation of Judge Samuel Alito the other day. What was particularly funny and indicative of just how in the tank Hiatt and Co. are was their straight from the GOP talking points invocation of Alito's "judicial modesty":

Humility is called for when predicting how a Supreme Court nominee will vote on key issues, or even what those issues will be, given how people and issues evolve. But it's fair to guess that Judge Alito will favor a judiciary that exercises restraint and does not substitute its judgment for that of the political branches in areas of their competence. That's not all bad. The Supreme Court sports a great range of ideological diversity but less disagreement about the scope of proper judicial power. The institutional self-discipline and modesty that both Judge Alito and Chief Justice Roberts profess could do the court good if taken seriously and applied apolitically.

One can only laugh at this. Surely Hiatt and Co. do not believe this of Alito. Roberts has no record so you can plausibly believe anything you want about him. Not so Alito who has a record of judicial activism that is undeniable. I wrote a few weeks ago:

I adhere to the view that all judges (and lawyers) are Legal Realists at heart -- we can all, generally speaking, justify a legal point of view. My point is that we do so to justify our desired result. And Alito is no different. That is why the results he has advocated are important for more than examining potential policy results; they also help to reveal his judicial philosophy. I am going to examine two of his opinions - his dissents in United States v. Rybar (the machine gun case) and in Planned Parenthood v. Casey (the abortion case) to illustrate Alito's selective adherence to "precedent" to achieve the result he desired in both of those cases. In Rybar, he rationalizes that U.S. v Lopez dictates the result. In Casey, he ignores an on point Supreme Court precedent to achieve the result he wants. I will also posit what I believe these two decisions demonstrate regarding Alito's judicial philosophy.

Today Ruth Marcus, who is on the Hiatt and Co. team, writes a column that shreds the empty GOP talking points that Hiatt chose to publish:

For even the most responsible, well-intentioned judge, respectful of precedent and -- to use the adjective du jour -- modest in his conception of the judicial role, is called on to make, well, judgment calls, filling gaps in legislation or interpreting capacious constitutional phrases. The higher up the judicial ladder, the harder the cases -- and the more important the judge's underlying worldview, judicial philosophy and constitutional vision. There is, in short, a soul inside every judicial machine.

Justice Benjamin Cardozo, lecturing on the judicial role in 1921, described the inescapable, hidden forces tugging at judges -- "inherited instincts, traditional beliefs, acquired opinions" -- forces, that, he said, produced "an outlook on life, a conception of social needs . . . which, when reasons are nicely balanced, must determine where choice shall fall."

. . . In a provocative essay in the November 2005 Harvard Law Review, Richard Posner, a federal appeals court judge appointed by Ronald Reagan, makes an even more unvarnished version of that argument. Much of the high court's constitutional decision making, Posner asserts, is inherently political.

As much as a court "is supposed to be tethered to authoritative texts," Posner writes, the Supreme Court often finds itself facing issues to which "the constitutional text and history, and the pronouncements in past opinions, do not speak clearly." It is in that "broad open area where the conventional legal materials of decision run out, and the Justices, deprived of those crutches, have to make a discretionary call."

Marcus' closing paragraph is dripping with irony in light of the vacuous editorial published by Hiatt and Co.:

What has been so disappointing about the nominees' testimony is their unwillingness to engage in this discussion in an honest, meaningful way. What has been so maddening about the questioning is the senators' inability to penetrate their platitudes or robotic restatements of the law. Because thinking hard isn't enough -- for a silly old bear or a smart new justice.

Ms. Marcus may consider asking her Editorial Board colleagues how they discerned Alito's worthiness and um, "modesty" so easily before being so dismissive of the senators' "platitudes." It is rather maddening.

Feinstein last week on Fox News Sunday:

"If I believe that he was going to go in there and overthrow Roe, the question is, most likely, yes [that would merit a filibuster]."

Feinstein today:

"I do not see a likelihood of a filibuster," said Sen. Dianne Feinstein, D-Calif. "This might be a man I disagree with, but it doesn't mean he shouldn't be on the court."

Alito before the hearings:

I am particularly proud of my contributions in recent cases which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion.

Alito at the hearings, responding to Feinstein's line of questioning about Roe and stare decisis:

"The Supreme Court has said that this is a question that calls for the exercise of judgment. And they've said there has to be a special justification for overruling a precedent. There is a presumption that precedence will be followed. But it is not the -- the rule of stare decisis is not an inexorable command.

It could not be more crystal clear that scalito is too far outside the mainstream to be confirmed - especially replacing O'Connor.

What is the point of electing dems if they don't fight for what's right?

There are 45 senators (44 if you subtract Nelson) who should be absolutely resolute against Scalito.

The Harriet lynching by the fundies proves the whole "up or down vote" was a scam.  A new talking point for dems

There are apparently 45 opinions written by Scalito for Reagan that will not be released..  why should anyone vote without these "opinions"

What is the difference between 45 dem senators 40 or 35 if they do not use the fillibuster?

Scalito is NOT the best america can do even Michael Luttig questions the administration once in a while.

http://www.law.com/...

Updated: Well even though Samuel Alito now sits on the Supreme Court I think we really made him re-think how he will rule in future cases. And there was an attempt to filibuster, and even though Barack Obama didn't give the filibuster he still voted against cloture, exactly like this constituent asked.

Below the fold is a Daily Kos guide to filibustering Samuel Alito.

Thanx to a friend and this post, I thought I'd cherry pick the comments on this fight from the bright minds over at dkos, so this is about strategies, facts, and views from a lot of people. These are not my words, but the words of many. There is some excellent strategic thinking. Please email or call your Representatives and Senators to let them know the true issues at stake. For those in California, here is Senator Feinstein's webpage with phone numbers to contact her and let her know protecting the Constitution is more important than being nice, and that until the FISA issue is raised and answered satisfactorily, Alito MUST be filibustered. Click on the title to read what's at stake, and how to contact your Senators and House members.

One of the things that bothers me the most is this idea that BorkAlito's personal views on abortion are the problem. And that his saying his personal views don't effect his judicial decisionmaking actually means something. For example:

Supreme Court nominee Samuel Alito, who expressed strong opposition to abortion rights two decades ago, pledged Friday that his personal views on the subject "would not be a factor" in his rulings, the chairman of the Senate Judiciary Committee said.

Sen. Arlen Specter (R-Pa.) said Alito had told him in a private meeting that "with respect to his personal views on a woman's right to choose ... that is not a matter to be considered in the deliberation on a constitutional issue of a woman's right to choose. The judicial role is entirely different."

Alito repeated this irrelevancy in the hearings. But I don't care about Alito's personal views of abortion. I care about his personal views of the Constitution:

Most recently, it has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan's administration and to help to advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion.

As for precedent, Alito said this:

[Alito] made a point of saying both to Senator Specter, and again to Senator Feinstein, that the principle of stare decisis -- respecting a past precedent -- is not `an inexorable command.'

Now of course, these are Alito's "personal views" -- of the law. Does Alito's conception of the "judicial role" mean he is going to vote based on Harry Blackmun's personal views of the law? Of course not.

So Senator Specter, et al., do NOT think you are kidding anybody. You are no more pro-choice than Sam Brownback when it comes to the Alito nomination.

Yes, there are NO pro-choice Republicans.

And all you Democratic Senators who dream of being President someday, remember that Alito is 55, he'll be around for a while. And when you want to call yourself pro-choice when you run for President, I guarantee you someone will be there to remind folks how you voted on the Samuel Alito nomination.

Not much of a surprise:

WASHINGTON, Jan 13 (Reuters) - Senate Judiciary Committee Chairman Arlen Specter on Friday announced he would vote to confirm Samuel Alito to the U.S. Supreme Court.

"I intend to vote to support Judge Alito's nomination as associate justice of the Supreme Court," said the Pennsylvania Republican at the conclusion of his committee's confirmation hearing.

Proving once again that there are no pro-choice Republicans.

Update [2006-1-13 14:47:13 by georgia10]:: For those still clinging to the hope Specter will vote nay despite voting Alito out of committee, I direct you to this statement from his closing remarks:

If I thought he should not be on the Supreme Court, I would vote no.

Update [2006-1-13 15:58:30 by georgia10]:: Transcript of Specter's statement below the fold.

Back when CJ Roberts was nominated, I wrote a diary entry in which I opined that he might not be so bad.  He is, after all, a nice guy, brilliant, by all accounts decent to others.  I had met him, and he is absolutely charming in person.

I was slammed as being, among other things, a DLC tool, a dupe, and worst of all, a Republican. It hurt.

As the Roberts nomination progressed, I realized just how wrong I was.  He may give his paper boy a nice tip, but he hates the Fourth Amendment.  He may be kind and generous to his law clerks, but I have no doubt that he'll support the Administration's right to detain people indefinitely without charge.  

How this relates to ScAlito after the break...

You gotta give Robert Bork this much, he's honest:

BLITZER:  Here's what Samuel Alito said about you, back in 1988.  Let me put it up on the screen.  "I think he - referring to you - was one of the most outstanding nominees of this century.

He is a man of unequaled ability, understanding of constitutional history, someone who had thought deeply throughout his entire life about constitutional issues and about the Supreme Court and the role it ought to play in American society."

He was asked about those remarks on Tuesday.  Listen to what he said.

SAMUEL ALITO, SUPREME COURT NOMINEE:  When I made that statement in 1988, I was an appointee in the Reagan administration and Judge Bork had been a nominee of the administration, and I had been a supporter of the nomination.  I don't think the statement goes beyond that.  There are issues with respect to which I probably agree with Judge Bork, and there are a number of issues with which I -- on which I disagree with him.

BLITZER:  Very diplomatic answer, I must say.  How do you think he handled himself?

BORK:  Very well.  He's walking away from a lot of things.  That was one example.

BLITZER:  Including you, right.

BORK:  Yes.

BLITZER:  So why do you say he handled himself very well?

BORK:  The object nowadays is to get confirmed.  People will say pretty much -- or avoid saying pretty much in order to get confirmed.

The Dems should have called Bork as a witness.

The mantra that "a President is entitled to his nominee" will be repeated many times as Senators decide how to cast their votes .  The premise stems from the notion that it is he who has a vested appointment power, and that the Senate should accord the President a high degree of deference when he makes he choice.

The question is this: Does this theory of entitlement prevail when the President has abused the trust of the American people?

Here is a President who has misled our Nation into war, abrogated the laws duly enacted by Congress, and violated our constitutional and civil rights. He's drudged through scandal after scandal, but has yet to be held accountable. Where is Phase II of the pre-war intelligence investigation? Where is the outrage over the fact he nullified Congress' ban on torture? He violated his oath to protect the Constitution when he issued his royal edict to spy on us outside the law.  Yet who will him responsible? A Republican Congress?

The President, exhibiting the theory of the unitary executive that Alito endorses, has snubbed the legislative and judicial branches of government and has declared himself above the law. And now, Senators will claim with straight face that he is entitled to his nominee?

The man is entitled to nothing from the Congress he has abused and misled. The man is entitled to nothing from the American people he has betrayed. It is us, the citizens of this country, who are entitled to the truth. And until we receive that truth, this nominee should not pass.

To let Alito sail through without a fight is to reward the President for his illegal and immoral behavior.  He has been rewarded enough. It's time the President learns he cannot abuse the public trust without consequence.

This unorthodox approach to the filibuter, I know, will not be embraced by many Democrats, especially those who already think filibustering is off the table. But to those Democrats, I ask you the following.  Imagine if, during the height of Lewinsky scandal, a vacancy occured on the Supreme Court. Does anyone honestly believe the Republicans would passively state that President Clinton was "entitled to his nominee"? Or would they spit fire and raise hell and refuse to give him any deference at all?

When the President commits an impeachable offense, the deference traditionally accorded to his judgment should cease to exist. A President who has betrayed the American people should not be entitled to the rubber-stamping of his nominees. Instead, the Senate should refuse to consider Alito's nomination until the President comes clean to the American people.

Let us examine the conduct of this Presidency first. Let him or his royal court take to the stand during the domestic spying hearings and defend their actions. Let us see whether he is still entitled to the presumption that the President acts in the best interests of the American people. Only then can a Senator make the decision of entitlement.  To do otherwise--to confirm Alito without first confirming whether the President violated the Constitution--is tantamount to appointing a jester to the King's Court.

This is in response to Delaware Dem's diary about the conflict between the political activists who want to go to the mattresses over ScAlito, and pragmatic political junkies who say this is a losing effort and our resources should be concentrated on strategy for future ballot box battles.

DD accuses activists of lacking situational understanding and implies we are not reality-based to insist on a do or die fight over BorkThomasScAlito, because we can't win.

Well, maybe we can't win.  But that is a poor reason not to fight.  I hate to bring up Texas in a positive context at a time like this, but when everything is on the line you fight as hard as you can even in a losing cause.  Remember the Alamo.

Republicans for Choice oppose Alito

The Republican Majority for Choice
(RMC) regrettably announces its opposition to the nomination of Judge Samuel Alito to the Supreme Court.  

 

So maybe the Filibuster isn't dead!!!  
Maybe we won't even need a filibuster if the Republican's start falling apart on this.

More on the flip

In an editorial for tomorrow's paper, the New York Times points out that Senators who claim to be pro-choice really have NO choice on BorkAlito:

There are many reasons to be concerned about the nomination of Judge Samuel Alito Jr. for the Supreme Court, but for a small group of moderate Republicans who strongly identify themselves as supporters of abortion rights, there is a special problem: if Judge Alito gets to the court, there is every reason to believe that he will vote to overturn Roe v. Wade when the opportunity comes.

. . . [T]hat should make things hard for Senator Specter and for three moderate Republicans - Lincoln Chafee of Rhode Island, and Olympia Snowe and Susan Collins of Maine - who have said they will oppose any nominee committed to overturning Roe.

. . . The single most important thing a senator can do to support abortion rights is to vote against Supreme Court nominees who would take such rights away. Given Judge Alito's record and his testimony, it is hard to see how Senators Specter, Chafee, Snowe and Collins - or any other pro-choice senators - can call themselves strong advocates of abortion rights if they support him.

This holds for Dem Senators who claim to be pro-choice as well. We'll see how they vote. But one Republican Senator who claims to be pro-choice has already demonstrated that there really are no pro-choice Republicans:

Sen. Olympia Snowe, R-Maine, "does not believe that Judge Alito warrants a filibuster," spokeswoman Antonia Ferrier said.

Do you think she thinks he warrants a No vote? There are no pro-choice Republicans.

We got more of the "Shoe-in for confirmation" talk from Stewart tonight.  Strangely he started to she by referring to Alito's "supposed membership" in CAP.  Author and Clerk Ed Lazarus provided the "expert opinion" assuring us that Stewart is right and the hearings are pointless show.

As they talked about the unlikelyhood of Alito making a gaffe, it occurred to me how strange it is that nobody can say what any reasonable person knows to be true -- Alito, is not simply being coy, he is LYING. Those on here who always insist on the Smoking Gun before we take action live in a fantasy world.  I've said many times, the days of the Smoking Gun are gone, replaced by powerful PR machines and wives who cry on cue.  It is simply unreasonable to believe Alito bragged about his CAP membership and had know idea what the group was about, just as it is unreasonable to think Bush, Cheney and Condi thought we'd be attacked with nuclear weapons and anthrax carrying drones from Iraq.  We need to wise up and stand up before the rest of our rights are trampled and soldiers sent to die.