Are we ready to rumble? The "filibuster" word is being brought up again. This warrants a quick reminder of the "Memorandum of Understanding on Judicial Nominations" that was used earlier in the year to hold off the "nuclear option" which would end a time-old practice of allowing filibusters in such matters. Remember, the rule now is that sixty will cut off debate, which is more than it used to be (this replaced the 67 vote rule, which replaced the no cloture rule). And, since various Alito supporters are saying that he will get 60-65 votes anyway (if confirmed, that sounds about right), what is the big fuss, right?
Well, just as a few senators are already talking about filibusters, a few are already talking about the nuclear option. Sen. DeWine, a weak-willed member of the Gang of 14 who signed the thing, preemptively warned against the use of the filibuster. Judge Alito is clearly not "out of the mainstream" so the "extraordinary circumstances" test was not met.* [And, implicitly, no other skeletons are in his closet.] Yeah, that violates the letter of the agreement. The agreement specifically notes: "each signatory must use his or her own discretion and judgment in determining whether the circumstances exist." Given Alito in various cases went further than Rehnquist/Scalia, it is reasonable to argue the guy is outside the mainstream. Anyway, it's an individual senator decision.
Furthermore, a sort of "sense of the Gang of 14" proviso also was not met here. They "encouraged" the President to consult with the members of the Senate (assumingly on both sides of the aisle, including the minority leader) prior to submitting a judicial nomination. This was done in the case of Harriet Miers and Sen. Reid supported her nomination. Clinton did as well, putting forth justices Orin Hatch found acceptable, the spin now that they are "out of the mainstream" clearly b.s. [Well, at least, Hatch said as much in his book -- if he wasn't consulted, maybe he is just a big fat liar, right?] It was not done here -- the nomination was rushed out four days after Miers removed herself from the running. This was probably done for political reasons, though Reid's bar room brawl tactic of putting the Senate in secret session helped to cut its value. So, again, an arguably (as I did so argue) too weak compromise was not followed.
And, DeWine wants to follow it less. Well, this is no surprise -- as with Sen. Roberts skullduggery with the Iraq War Report (putting off the more explosive Part II to after the election ... since well they could ... and then basically forgetting about it) -- the Republicans in Congress, even in the still more collegiate Senate, do not want to play by the rules. Matt Yglesias doesn't like the filibuster, but notes that Alito is a bad pick, so protecting it from the nuclear option by letting him be confirmed (that is, if 40 Democrats truly wanted to use it unless it would end its possible use overall) would be ill advised. After all, it's allowed now, so Democrats should have the right to use it as Republicans did in the past. I agree -- I would add that Reid's move and other things suggest that playing chicken here is not as scary as some might think.
If, which is no gimme, the Dems hold, the necessary number of Republicans just might blink. They know that they will not always be in the majority and anyway carrying the administration's water is starting to be a no win situation. When Sen. Lott starts to ponder that maybe Rove shouldn't be in the administration, something is going on. Anyway, if any of the 14 talks about Alito not fitting the exception, the answer is "well, you have every right to argue, but your colleagues have the right to argue the opposite -- or are you saying that they no longer have the ability to judge how to vote following their own conscience?"
Talk about exercising "their responsibilities ... in good faith." But, such a concept appears to be a bit too confusing for a lot of people in Washington these days. On that note, again, cheers to Reid, Durbin, and all the rest who actually take their responsibility to the American people seriously. As to the filibuster, who knows if it will be used. Point is, the Democrats have every right to use it, and arguments otherwise are wrong.
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* I added a tidbit to my last post, linking to a discussion of one of Judge Alito's more infamous opinions. The blogger in general has some good stuff on why he opposes Alito, arguing that his ideology is fair game, and says why Alito's warrants opposition. Reference is made to Ann Althouse, a law professor/blogger with a conservative slant, who had an editorial in the NYT arguing that Alito is no Scalia ... she based this on a few cases. It appears that the two are not simply two peas in a pod, but the editorial was not that convincing at any rate. Althouse apparently argues that competence is the sole test ... not ideology. Since when, Ann?
Anyway, I recommend his blog as an example of an opposition viewpoint that makes a substantive case, less simplistic than many others tend to be. Meanwhile, the LAT has an article amounting to a "Liberals for Alito" advertisement -- without any competing viewpoints as balance. Sigh.