The next Alito, and why "more Democrats" isn't enough

It's not just a matter of electing more senators; progressives must turn around votes that are already there.

Published January 31, 2006 6:59PM (EST)

There's some brave talk today about how progressives are poised to fight if George W. Bush gets the chance to nominate another right-wing ideologue to the Supreme Court. We hope that's right. But take a look at the roll-call votes on the Alito nomination and the electoral map for 2006, and you get a pretty bleak view of the left's prospects for blocking the next Samuel Alito.

Alito carried the Senate today by a vote of 58-42. That means that progressives were nine votes short of what they needed to beat him on an up-or-down vote. (Eight gets them to 50, but Dick Cheney's tiebreaker means they really need 51.) There are 33 Senate seats up for election this year. Seventeen of those seats are held by senators who voted to confirm Alito. So progressives can beat the next Alito if they "just" take nine of those 17 seats, right? Sort of. Three of those 17 seats are already held by Democrats -- Democrats who voted in favor of Alito's nomination. If those Democrats win reelection, the three seats will be held by pro-Alito Democrats; if those Democrats lose reelection, the seats will be held by presumably pro-Alito Republicans. So take those three seats out of the equation.

To turn around the vote count on the next Alito, progressives would need to win nine of the 14 seats currently held by pro-Alito Republicans. But wait, it's even worse than that. Bob Casey Jr., the likely Democratic challenger for Republican Sen. Rick Santorum, says he would have voted for Alito if he were in the Senate today. So take the Pennsylvania race out of the equation, too. If nothing else changes, progressives will have to take away nine of the 13 seats currently held by pro-Alito Republicans and hold on to all 16 seats currently held by senators who voted against Alito.

Is that possible? Theoretically, of course it is. Is there any reasonable possibility that it will actually happen? No. To pick up nine of 13, Democrats would have to win every pro-Alito Republican seat that's even remotely competitive and take three or four or five seats from Republicans who seem like locks today. That means beating at least a few senators from a list that includes Utah's Orrin Hatch, Mississippi's Trent Lott, Texas' Kay Bailey Hutchison, Indiana's Dick Lugar, Maine's Olympia Snowe, Nevada's John Ensign and Wyoming's Craig Thomas -- a group of Republicans who won their seats in 2000 with an average of about 71 percent of the vote -- all while not losing a single anti-Alito seat they've already got.

OK, but progressives don't really need to beat an Alito on an up-or-down vote; they just need to hold off a cloture motion, right? Right, but now we're really at the edge of mathematical impossibility. The Senate voted 72-25 to cut off debate on the Alito nomination, meaning that progressives needed 16 more votes to get to the 41 needed to maintain a filibuster. Of the 33 Senate seats up for election this year, 25 are currently held by senators who voted down the filibuster. So progressives prevail next time if they can turn 16 of those 25 seats into pro-filibuster ones? Right. But 10 of those seats are held by Democrats who voted in favor of ending debate on Alito, meaning that those seats won't move into the pro-filibuster column even if the Democrats who hold them are all reelected. As a result, progressives hoping for pickups on the filibuster front must look to the 15 anti-filibuster seats currently held by Republicans -- and somehow manage to pick up 16 of them.

So is it hopeless? If nothing else changes, it sure looks that way. But things can change, and they do. Pro-Alito and anti-filibuster Democrats can be -- and in some cases will be -- challenged in the primaries by more progressive Democrats. Republican Sen. Lincoln Chafee, who voted against Alito but refused to support a filibuster, could be replaced by a Democrat who is a more reliable pro-choice vote. And candidates who seem like locks today can melt down tomorrow; a scandal or a health scare or a sudden death can alter the shape of a race in an instant.

But the numbers suggest that if Bush gets to nominate another justice, and if he picks somebody who's as objectionable as Alito, progressives are going to have to have done more in the meantime than elect additional Democrats to the Senate in 2006. They're going to have to turn around the votes of some of the senators who are already there. Some of that will come naturally; if the next nominee is clearly the fifth vote to overturn Roe v. Wade -- if it is, for example, a right-wing ideologue nominated to replace Justice John Paul Stevens -- we'd expect that a lot of pro-choice senators who sat this one out will be deep into the fight then. Some of them will get there on their own, but some of them are going to need to be pushed. Maybe that process has already begun; 42 senators voted against confirming Alito, nearly double the number who voted against John G. Roberts. But 42 is still a long way from 51. If progressives are going to be there then, they're going to have to start moving their senators hard in that direction now.

Update: As a reader notes in the comments below, there's another -- and slightly easier -- way progressives can keep Bush from putting another Alito on the court. If Democrats pick up six seats and win control of the Senate this fall, they'll also win control of the Senate Judiciary Committee. If they keep that committee fully stocked with anti-Alito Democrats, they can block the next Alito from getting to the Senate floor in the first place.

By Tim Grieve

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

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