There's no stopping Alito now

After lackluster hearings, Samuel Alito's confirmation to the Supreme Court looks all but certain.

Published January 13, 2006 4:45PM (EST)

Alito is in. That's the word this morning from both the New York Times and the Washington Post, which report that Democrats in the Senate as well as lefty advocacy groups have concluded that there's no way to block Samuel Alito from gaining confirmation to replace Sandra Day O'Connor on the Supreme Court. Not even a filibuster looks likely to keep the court from lurching rightward now.

Going in to these hearings, "liberal activists said their best hope was for Alito to commit a gaffe or lose his composure," the Post says. If Alito had said something quite clearly beyond the pale -- if he'd declared that the president is above the law, or refused to recognize the privacy precedents set by pre-Roe reproductive cases -- he might have drawn the ire of moderate Republicans in the Senate, whose support Democrats need to shoot down the nomination on a floor vote. But though Alito was no John Roberts, he wasn't Robert Bork, either. Not a single Democrat on the Judiciary Committee is likely to vote for Alito. (Roberts drew three Democratic supporters.) The trouble is, not a single Republican is likely to vote against him, either. If the same dynamic plays out on the Senate floor in few weeks' time, Alito would win 55 votes. That's as few as any nominee since Clarence Thomas and, to be sure, not the best record for the nominee of a president who promised to be a uniter. But 55 votes is five more than the minimum Alito needs to get his ticket stamped for a lifetime seat on the court. It's a winning score, and in Washington, as in life, that's all that matters.

What about a filibuster, you say? Couldn't the Democrats refuse to shut down debate, thereby requiring the Alito nomination to pass a 60-vote hurdle? They could. But there are consequences to that move, and this morning, the consequences don't look good. Olympia Snowe -- the moderate Republican senator from Maine who is a member of the "Gang of 14," the group of centrist senators who pulled that body away from the brink of the "nuclear option" (eliminating the filibuster for judicial nominees) last year -- says that she will not support a filibuster. Under the terms of the gang's deal, if Democrats in that group support a filibuster, Snowe would vote in favor of eliminating the filibuster.

If other Republicans in the gang do the same, the Democrats would be sunk: Not only would Alito sail through, but the left would also lose the right to filibuster any future nominees to the Supreme Court as well as to lower federal courts. And, of course, Democrats could face various other political repercussions stemming from the tactic, which is something many may fear during what's shaping up to be a winning political year.

This calculus probably explains why Senate Democrats are so quiet on their options right now. "We've still got a ways to go to figure what the strategy is going to be," Ted Kennedy told the Post. Folks in the GOP, meanwhile, are beaming with confidence. Utah Republican Sen. Orrin Hatch tells the paper, "If they want to filibuster, frankly, bring it on." The last time a Republican said that, things didn't go his way. Alas, in the Senate, on Alito, the GOP mission looks accomplished.

By Farhad Manjoo

Farhad Manjoo is a Salon staff writer and the author of True Enough: Learning to Live in a Post-Fact Society.

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