Earlier today, we reflected on the pros and cons of a possible Democratic filibuster of Samuel Alito's nomination to the Supreme Court. Actually, we only reflected on the cons. We noted that Olympia Snowe, one of the Republican senators who struck a deal with centrists on the nuclear option last year, has already come out against a filibuster, and consequently we concluded two things: a) that Snowe and other Republicans in the Gang of 14 would likely vote to eliminate the filibuster (i.e., they'd support the "nuclear option"), and b) this would be very bad for the Democrats, as Alito would get to the court, and the left would lose the right to filibuster in the future.
We still think this scenario is most likely correct. Indeed, we're even a bit more confident in our theory now, as the facts are lining up on our side. As of now, five of the seven Republicans in the Gang of 14 have stated that they don't think a filibuster is justified against Alito, according to the Associated Press. These five are Lindsey Graham, R-S.C.; Mike DeWine, R-Ohio; Lincoln Chafee, R-R.I.; Susan Collins, R-Maine; and Snowe. In addition, one Democrat in the gang, Nebraska's Ben Nelson, released a statement indicating some support for Alito. "So far I have seen nothing during my interview with the nominee, the background materials that have been produced or through the committee process that I would consider a disqualifying issue against Judge Alito," Nelson said.
But what does it mean that these Republicans would not support a filibuster? We take it to mean that it's likely that they'll join with their more conservative colleagues in support of the nuclear option if Democrats decide to push for a filibuster. After all, if moderate Democrats among the gang choose to filibuster, they'd be breaking the Gang of 14 compromise; and if that happens, Republicans in the gang would feel free to break it as well by supporting the nuclear option. Hence, we concluded that not even a filibuster could stop Alito now.
But in letters responding to our theory, several readers pointed out a wrinkle -- just because moderate Republicans oppose a filibuster doesn't mean they'd support the nuclear option, even if the Gang of 14 compromise gives them that clearance. If Republicans want Alito so bad, Democrats should force them to make a hard choice to get him: They should choose between getting Alito on the court and keeping the Senate's traditions intact. A reader calling himself tempus outlined this strategy best: "Play chicken with the filibuster," tempus says. "DARE them to go nuclear. I believe they will blink but even if they don't it is a Dem win. Sure, Alito would get confirmed but that would happen anyway if you didn't try the filibuster. The bonus here is that the Dems are looking to take over one or both houses of Congress in '06 and '08. The Dems will inherit a Senate containing a big nuclear crater in the middle of it. The Dems will then be able to take total control of the judicial nomination process and act as if the GOP doesn't even exist. The GOP will have NO options at all. This is a good thing."
We have to say we like the way tempus thinks. Indeed, it wasn't too long ago that we -- that is, this War Room staffer -- advocated dropping the filibuster precisely because the move would reduce the GOP's ability to fight Democratic nominations once Democrats regain Congress and the presidency, as will surely happen someday, perhaps someday soon. If Alito's going to be confirmed anyway, why not take a stand? As many readers asked, if you don't use a filibuster for a Supreme Court nominee, the most important nomination in the land, what's the point in having one?
And yet, and yet. We keep wondering about the danger of venturing into the unknown, as many on the Democratic side must be doing right now. Nobody can predict how a fight over the filibuster would play out politically. Samuel Alito is by no means extremely popular with the American people -- but a Fox/Opinion Dynamics poll taken after the hearings began shows that substantially more people support his confirmation than his defeat, and Rasmussen's daily polling shows that his support has increased, rather than decreased, during the hearings. We should all keep in mind there's a reason why they call it the nuclear option -- the fight over the filibuster would be so huge, and so unwieldy, it could backfire against the Democrats in a million ways.
On the other hand, it could pay off for the Democrats. The point is we just don't know, and anyone who claims to know is lying. That's why we hope there's a lot of head scratching, and soul-searching, in the party right now. This is something that deserves a lot of thought.