It's the math: Roberts will be confirmed

Unless senators discover a skeleton in his closet, the nomination fight is over before it even begins.

Published July 21, 2005 1:27PM (EDT)

No one is throwing in the towel just yet, but even hardcore progressive activists must be finding it hard to hold out hope that they can derail George W. Bush's nominee to the U.S. Supreme Court.

It's all about the math. The Republicans hold 55 seats in the Senate. Assuming that we don't learn about some tawdry elements in John Roberts' past -- and probably even if we do -- we can guarantee you that every last one of those Republicans will vote in favor of Roberts' nomination. That's more than enough votes to provide Roberts the simple majority he needs for confirmation.

Yes, the Democrats could conceivably try to filibuster the nomination, and if at least 40 of them stuck together, they could keep Roberts' nomination from coming to the Senate floor for a vote. But if the Democrats were to go down that road, Senate Majority Leader Bill Frist would almost certainly begin dusting off the nuclear option, and it's pretty clear that there won't be enough renegade Republicans this time around to stop him. Frist had to table his nuclear option plans in May when the "Gang of 14" struck a compromise deal: Seven Republicans wouldn't vote in favor of the nuclear option -- which would have had the effect of eliminating filibusters for judicial nominees -- and, in exchange, seven Democrats wouldn't vote to filibuster any Bush judicial nominees except in "extraordinary circumstances."

And this is where the math really comes in. Two of the seven Republicans who signed off on the nuclear option compromise -- John McCain of Arizona and John Warner of Virginia -- have already indicated that Roberts, in their minds, doesn't amount to an "extraordinary circumstances" nominee who would warrant a filibuster. Thus, if Democrats do filibuster the Roberts nomination, McCain and Warner might well be willing to back Frist's bid to go nuclear. And if they do, the game is over. Frist needs 50 votes -- plus a tiebreaker from Dick Cheney -- to prevail on the nuclear option. That means he can lose five of the 55 Republican votes and still carry the day. So assuming that McCain and Warner would go with Frist on the nuclear option, the majority leader would have the votes to win even if all five of the remaining "Gang of 14" Republicans went the other way. And we'll bet you a Diet Coke can and a "Long Dong Silver" video that they won't.

Senate Democrats understand the numbers, and they're coming to grips with the way they add up. "Do I believe this is a filibuster-able nominee?" Sen. Dianne Feinstein asked herself yesterday. "The answer would be no, not at this time."

So Feinstein's California colleague Barbara Boxer can talk gamely about the possibility of a filibuster -- she said yesterday that a "filibuster is on the table" even though Democrats hope they don't have to use it -- but everyone in Washington has to know the real score: Unless John Roberts has got some front-page secrets buried in the back of a dark closet somewhere, he's going to be sitting on the Supreme Court come October.

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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