Doing the numbers on the Alito filibuster

Even senators who support John Kerry's bid acknowledge that it's unlikely to stand in the way of the judge's confirmation.

Published January 27, 2006 2:16PM (EST)

It's about the math.

Even Democratic senators who support John Kerry's plan to filibuster the nomination of Samuel Alito acknowledge that they don't have much of a chance of stopping him from taking a seat on the Supreme Court. Illinois Sen. Dick Durbin, the Democratic whip, said Thursday that he has counted the votes and concluded that it's "highly unlikely that a filibuster would succeed." Ted Kennedy says success is "achievable" but "an uphill climb."

How steep is that hill? Let's do the numbers.

Bill Frist has moved for a cloture vote on Monday afternoon. To prevail -- that is, to force the Senate to take an up-or-down vote on Alito Tuesday morning -- Frist needs the votes of 60 senators. So far, 52 Republicans and three Democrats -- Nebraska's Ben Nelson, South Dakota's Tim Johnson and West Virginia's Robert Byrd -- have announced that they'll vote for Alito. That means, presumably, that Frist already has 55 of the 60 votes he needs.

How does he get to 60? At least three more Democrats have said that they'll vote against Alito but won't go so far as supporting a filibuster. Louisiana Sen. Mary Landrieu, who hasn't received so much attention since Anderson Cooper was ripping into her for thanking government officials for their response to Katrina while people were dying in the streets, says that a filibuster would be "counterproductive" because the Senate has more "pressing" issues to handle right now. Colorado Sen. Ken Salazar, who calls Clarence Thomas an "abomination" but says he doesn't know what he would have done if he had been in the Senate when Thomas was up for confirmation, said earlier this week that he wouldn't support a filibuster and would call a meeting of the nuclear-option-averting "Gang of 14" if anyone tried to mount one. And California Sen. Dianne Feinstein, who said this week that a pro-choice senator "can't vote for Judge Alito," suggested last week that she wouldn't filibuster the nomination because the nominee wasn't guilty of "gross moral turpitude."

Add those three to Frist's 55 and he gets to 58, just two short of the 60 he needs. Where does Frist pick up an additional pair? He has lots of options. Three Republicans -- Ted Stevens of Alaska, Olympia Snowe of Maine and Lincoln Chafee of Rhode Island -- haven't announced how they'll vote on Alito; if just two of them agree not to filibuster -- and it' s hard to imagine that they won't -- First has what he needs.

And even in the unlikely event that Frist can't get two out of those three to vote against a filibuster, there are almost certainly more anti-filibuster Democrats in the Landrieu-Salazar-Feinstein mold. A lot of red state Democrats are happy to cast no-count "no" votes against Alito but nervous about going any further. Even Senate Minority Leader Harry Reid was saying Thursday that he hoped the Alito nomination would be "resolved without too much more talking," and that "no one could complain" that there hadn't been enough time for debate already.

How do the numbers look from Kerry's perspective? While there are surely more to come, the Los Angeles Times today identifies just six Democrats who have gone on record in support of a filibuster: Kerry, Kennedy, Durbin, plus California Sen. Barbara Boxer, Michigan Sen. Debbie Stabenow and Maryland Sen. Paul Sarbanes.

Boxer told the Times that although the odds are long, "if colleagues on both sides of the aisle realize that liberty and justice are on the line, we have a chance for a nominee in the mold of Sandra Day O'Connor." Not now, perhaps, but maybe next time. As an aide to one Democratic senator told War Room this morning, "One year from now, when George Bush tries to ram through another Scalia clone, it'll be important to have fought hard. Enough Gang of 14-ism. If the filibuster wasn't intended for this, what's it for?"

By Tim Grieve

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

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John F. Kerry D-mass. Supreme Court