Eminent Domain

In an editorial entitled "Senators in Need of a Spine", the editors of the NYT declare their support for a filibuster of Judge Alito. I think that this is horrible advice.

Alexandre Dumas once said "Nothing succeeds like success". I'm a firm believer in that idea. Why would you choose to fight a battle that you know you will lose? The editors offer up this explanation...

Even a losing battle would draw the public's attention to the import of this nomination.

I don't think the public cares. I care, but I'm a law nerd. I once held hope that the public knew the names of at least a few of the Justices. Now I'm pretty sure that isn't the case. It's a fairly esoteric part of the national government.

This section is just bizarre...

Judge Alito's refusal to even pretend to sound like a moderate was telling because it would have cost him so little. Chief Justice John Roberts Jr., who was far more skillful at appearing mainstream at the hearings, has already given indications that whatever he said about the limits of executive power when he was questioned by the Senate has little practical impact on how he will rule now that he has a lifetime appointment.

So is the NYT suggesting that Judge Alito, under oath, should've lied? Or "pretended"? The shot at Chief Justice Roberts is cute too. Are they suggesting that Chief Justice Roberts lied in his testimony? The idea of the NYT editorial board judging what is "mainstream" is pretty laughable.

Now for tactics...

Senate Democrats, who presented a united front against the nomination of Judge Alito in the Judiciary Committee, seem unwilling to risk the public criticism that might come with a filibuster - particularly since there is very little chance it would work. Judge Alito's supporters would almost certainly be able to muster the 60 senators necessary to put the nomination to a final vote.

I'm not convinced that he will get 60 votes. I think it will be somewhere in the high 50's. The editors are forgetting something. Senator Frist is just itching for a chance to do away with the judicial filibuster. He only needs 50 votes for that. With many members of the Gang of 14 already solidly behind Judge Alito, I think Frist has the votes. Then the Democrats lose their ace in the hole. Even if there is a public backlash over the rule change (and I doubt it would be a huge one), it's very likely that the Republicans will stay in control of the Senate after the midterm elections. Then what? Then the Republicans can get through ALL of their judges on a simple majority vote. They get to fill the appeals courts with their chosen nominees. In the event of another Supreme Court vacancy, they have a much easier time getting through a more controversial nominee.

But this is not as cut and dry as that. If Alito doesn't get over 60 votes and it appears that a filibuster was a viable option (forgetting the rule change option), the Democrats may take heat from their more fervent supporters. "Why didn't you filibuster? You had 40-some votes against him!" The Democrats can try to explain that the rule change would've been invoked and they would've been screwed. But will that explanation work? Will their supporters buy it? The Democrats really are in a tricky situation here.

I still think that a filibuster now is just bad tactics. If the Democrats want to have a spine, as the editors demand, they should pick their battles wisely.