When George W. Bush nominated Harriet Miers to the Supreme Court, we said that the senators to watch were conservatives like Sam Brownback and George Allen. If Miers' nomination was going to fall, it was going to happen because the far right wing of the GOP pushed her.
The calculus is different this time. Conservatives are delighted by the prospect of having Samuel Alito on the Supreme Court. If his nomination is going to be stopped, it will be because moderate Republicans allow Democrats to stop him.
Even if Democrats unite in opposition to Alito -- and there's no guarantee that they will -- they can't defeat his nomination on an up-or-down vote by themselves. There are 44 Democrats in the Senate; even if they were to pick up the vote of independent Jim Jeffords, they would be six votes shy of what they'd need to defeat Alito. (In the case of a 50-50 tie, Vice President Dick Cheney would cast the decisive 51st vote for Alito.) Can Democrats persuade six Republicans to join them in voting against Alito on the Senate floor? We wouldn't count on it. The nomination is only a day old, but we haven't heard even a single Republican hint that he or she is considering a "no" vote.
Can Democrats filibuster the nomination? Sure they can. The Republicans led a filibuster against Abe Fortas' Supreme Court nomination three and a half decades ago, and the Democrats are free to do the same to Alito's nomination now. It takes 40 votes to keep a filibuster alive. Even if a handful of Red State Democrats go south on them, the Democrats could keep Alito's nomination from reaching the floor of the Senate.
But will they? And would it really work if they do? We don't know the answer to the first question, but we've got a pretty good sense of the answer to the second. If Democrats dare to filibuster the Alito nomination, Republicans will try, once again, to invoke the nuclear option, the complicated parliamentary maneuver by which GOP senators, likely with the help of Cheney, would change the Senate's rule so that filibusters of judicial nominees could be cut off not by the 60-vote supermajority now required for cloture votes but rather by a simple 51-vote majority.
Bill Frist failed in his attempt to go nuclear earlier this year when seven moderate Republicans defected. Together with seven Democrats, this "Gang of 14" struck a deal: The seven Democrats would allow some of Bush's most controversial appellate court nominees to come to the floor, and the seven Republicans would, in exchange, not vote to change the Senate's rules on filibusters. That's not likely to happen again. The "Gang of 14" is scheduled to meet Thursday in Sen. John McCain's office, but the writing is already on the wall. One of the Republican seven, Ohio Sen. Mike DeWine, has said flat out that he'll go nuclear if Democrats try to filibuster Alito. Another, Lindsey Graham, has come close to making a similar threat. The other five Republicans seem to be taking a wait-and-see approach, but not one of them has suggested yet that he or she would let the Democrats filibuster without a nuclear fight.
One way or another, our money says that Alito gets confirmed unless the confirmation process reveals some shocking skeletons in his closet. If we're right, the question for the Democrats is this: How hard to do you fight if you know that you're going to lose anyway? Do you devote your time, your energy and a reputation to this battle, or do you focus instead on GOP scandals that keep coming and a war that won't go away? There's a menu from which Democrats can choose now, and the choices they make may determine whether they keep winding up on the losing end of these votes in the future.