An up-or-down vote for Alito? Sometimes, even elephants forget

The nuclear option, revisited.

Published October 31, 2005 6:11PM (EST)

At a press conference this morning, Republican Sen. Mitch McConnell said that he and his colleagues would guarantee that Samuel Alito gets a fair hearing and an up-or-down vote, "as has always been the case on the Supreme Court nominees."

How quickly they forget.

You might recall a few things that seem to have escaped Sen. McConnell's memory. There was never an up-or-down vote for Harriet Miers. She was forced to withdraw her own nomination to the Supreme Court last week after the Republican leadership in the Senate made it clear to George W. Bush that she wouldn't be confirmed. There was never an up-or-down vote for Douglas Ginsburg. After he admitted to having smoked marijuana, Ginsburg withdrew his nomination in 1987 under what the New York Times then called "enormous pressure" from Reagan administration officials "and "conservative supporters on Capitol Hill." And there was never an up-or-down vote on Abe Fortas. Lyndon Johnson withdrew his nomination in 1968 in the face of a filibuster led by Republican senators.

John Jay was confirmed as the nation's first chief justice in 1789. Since then, approximately 20 of 158 Supreme Court nominations have come to an end before coming to the Senate floor. Republicans weren't responsible for all of them. Even so, they can't argue -- at least not credibly -- that anything other than an up-or-down vote on the Alito nomination would be unprecedented. That won't stop them, of course. Bill Frist and his colleagues threw around the word "unprecedented" throughout the debate over filibusters earlier this year, even though Frist himself had participated in a filibuster of one of Bill Clinton's nominees. But the real question is this: Will Democrats make the word "filibuster" relevant again?

Ted Kennedy was asked the question twice today: Will Democrats, outnumbered in the Senate, try to block the Alito nomination by launching a filibuster against it? Kennedy didn't answer the first time he was asked. The second time, he said that he hadn't heard any "talk" of a filibuster yet, then added quickly that the Alito nomination is only a few hours old. Both Harry Reid and Chuck Schumer have been similarly noncommittal on the question, refusing to rule a filibuster either in or out.

Republicans aren't being so circumspect about their intentions. Sen. Orrin Hatch -- who as Senate Judiciary Committee chairman prevented dozens of Clinton nominees from getting up-or-down votes -- was asked today whether the Republicans would invoke the nuclear option if the Democrats filibustered Alito's nomination. His response, according to CNN: "You bet your life we would."

By Tim Grieve

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

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