January 13, 2006


Dems weigh filibuster as Alito testimony ends (Kathy Kiely, 1/12/06, USA TODAY)

Three members of the "Gang of 14," a bipartisan group of senators whose support would be vital to sustaining a filibuster, said this week that they do not see any grounds for the parliamentary maneuver. "So far I have seen nothing ... that I would consider a disqualifying issue," Sen. Ben Nelson, D-Neb., said in a statement.

Sen. Lincoln Chafee, R-R.I., echoed that view, as did a spokeswoman for Sen. Olympia Snowe, R-Maine. "Sen. Snowe does not believe that Judge Alito warrants a filibuster at this juncture," Antonia Ferrier said.

Two other "gang" members, Sens. Mike DeWine, R-Ohio, and Lindsey Graham, R-S.C., participated in Alito's confirmation hearings and said they back him.

Senate Majority Leader Bill Frist, R-Tenn., predicted Democrats will not filibuster. Frist told Gannett News Service that if Democrats try to block Alito's nomination, he will move to end the use of filibusters against judicial nominees.

Alito and His Coaches: For Supreme Court nominee, hearings are an inside game (James Ridgeway with Michael Roston, January 10th, 2006, Village Voice)
At the hearing, [Judiciary Committee member Lindsey Graham, the Republican senator from South Carolina] told Alito, nominee for the U.S. Supreme Court, that he had already decided in Alito's favor. "I don't know what kind of vote you're going to get, but you'll make it through. It's possible you could talk me out of voting for you, but I doubt it. So I won't even try to challenge you along those lines."

That certainly ought to be the case. Graham is one of a group of Republicans who have been coaching Alito behind the scenes. The Wall Street Journal's Washington Wire reported before the hearings began:

"On Thursday, Sen. Lindsey Graham of South Carolina, one of the 'gang of 14' who sits on Judiciary, joined a so-called moot court session at the White House.''

Alito expected to be confirmed (Charles Hurt, January 13, 2006, THE WASHINGTON TIMES)
Although Democrats on the committee seemed unified in their opposition to Judge Alito, a filibuster does not appear to be in the offing.

Sen. Joseph R. Biden Jr., Delaware Democrat and a member of the panel, told reporters that Judge Alito is "very bright and very conservative."

Mr. Biden added that although he probably will vote against him, "I think he is going to be confirmed."

"I don't see anything that indicates" a filibuster, Sen. Dianne Feinstein, California Democrat, said on CNN. "At this stage, I don't see anything that really indicates a filibuster."

Here's the info since many of you will likely be wanting to call John McCain to apologize for misunderstanding how effectively the Gang of 14 had killed the filibuster option:

McCain, John- (R - AZ)
(202) 224-2235

Liberal Groups Vow to Dig In: By expanding the battle against Alito even though a filibuster is unlikely, Democrats hope to make the GOP pay in November (Ronald Brownstein, January 13, 2006, LA Times)
Liberal groups pledged Thursday to expand their uphill campaign against Supreme Court nominee Samuel A. Alito Jr., saying this week's hearings provided fuel for a sustained lobbying effort against his confirmation. [...]

"There is going to be a significant effort to defeat this nomination inside Washington — but more importantly, outside Washington," said Ralph G. Neas, president of People for the American Way, a liberal advocacy group leading the opposition to Alito.

Democratic senators, however, appear unlikely to enlist in an all-out effort by party activists to thwart the nomination.

Although Alito is expected to draw significantly more opposition than Roberts, party leaders seem unwilling to pursue a filibuster against him, which probably represents their sole option for blocking the nomination.
Few Glimmers of How Conservative Judge Alito Is (ADAM LIPTAK, 1/12/06, NY Times)

Judge Alito completed his testimony Thursday amid substantial opposition from Democrats, who indicated they would not support him, but saw little chance of blocking his confirmation.

On one of the few occasions Judge Alito spoke about his general approach to the law, he embraced a mode of constitutional interpretation, originalism, often associated with Justices Scalia and Thomas.

"In interpreting the Constitution," Judge Alito said Wednesday, "I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption."

Chief Justice John G. Roberts Jr., by contrast, described a more eclectic and dynamic approach to constitutional interpretation at his confirmation hearings in September. Justice Sandra Day O'Connor, whom Judge Alito will replace if he is confirmed, has also embraced a variety of approaches.

"Judge Alito sounded less amenable to constitutional evolution than Roberts," said Cass R. Sunstein, a law professor at the University of Chicago who studied Judge Alito's dissenting opinions at the request of Senator Edward M. Kennedy, Democrat of Massachusetts, but has taken no position on the nomination. "He is someone who is more likely to vote with Justice Scalia and Justice Thomas than Justice O'Connor."

Fortunately, Americans don't believe in Evolution.
Mr. Neas reminds one of Steve McQueen at the end of The Sand Pebbles.

Posted by Orrin Judd at January 13, 2006 7:32 AM

Was there an announcement that OJ had become McCain's NH chairman?

Alito, like Roberts, was a highly qualified non-combative judge who is replacing a judge (O'Connor) who was at worst middle of the road. SC watchers don't think Roe gets overturned with Alito.

The real battle will be when a Stevens or Ginsburg needs to be replaced. Let's see what the Gang of 14 does if a Janice Brown or Priscilla Owens or other non left judge is nominated.

Posted by: AWW at January 13, 2006 7:52 AM

Ah; I love the smell of TypeKey troll-bait in the morning. Okay; I'll play.

I called Sen. McCain's office to apologize, but they put me hold...for 5 years, just like Miguel Estrada. I finally got through, but they told me to call back 30 days before the election, and I would be allowed to not speak then.

So now I've got a call in to Sec. Hamilton's Weehauken office. I'm going to apologize for your uncritical use of the oxymoronic phrase, "filibuster option". And for Sen. McCain, in general.

Posted by: Noel at January 13, 2006 8:17 AM

Dear Senator McCain:

Thanks for making the world safe for justices who are so obviously qualified that even Joe Biden can see that they shouldn't be kept off the Court.

I was particularly pleased to see that President Bush was forced to drop a nominee in whom he had confidence for a nominee unknown to him but who's confirmation Senator Feinstein believes wouldn't be extraordinary.

I have to admit that the brilliance of your filibuster gambit, which cut off the legs of the Senate leadership at the knees, escaped me at first. Now I understand that it is better to have Presidents nominate justices who, like President GHW Bush and Justice Souter, they don't know personally and who are rewarded for obfuscating their judicial philosophy. Although Judge Alito is a very smart lawyer and obviously qualified for the Court, I do have a slight twinge of regret that we don't really know how he will rule on the questions most important to President Bush's conservative base. I'm sure, though, that I'm just being short-sighted.

Very truly yours,

David G. Cohen

Posted by: David Cohen at January 13, 2006 8:31 AM


You mean the radical Right judges they specifically said weren't filibuster worthy?

I'm not a McCain supporter, but he'll win and I'll vote for him in the general. He'll be a pretty bad president but get us over 60% in both houses.

Posted by: oj at January 13, 2006 9:12 AM

Dear Seantor McCain:

If you truly want to be President, please learn how to logroll the Democrats instead of your own party. It will come in handy, and not just for the primaries. You might also consider practicing with the media. It's part of the job, as the current President shows us every day (and quite successfully, I will note).

Yours truly,

a prospective supporter

Posted by: jim hamlen at January 13, 2006 9:13 AM

I hope it doesn't come to McCain or Hillary, the weak link or the missing link. Both will be equally horrible presidents in completely different ways.

According to Drudge we're soon to be 300 million strong. Out of this multitude, why can't the Republicans find a non-egomaniacal candidate?

Posted by: erp at January 13, 2006 9:30 AM


No one would run who wasn't an egomaniac. Coolidge, Truman, and Ford were the only humble presidents last century and weren't elected.

Posted by: oj at January 13, 2006 9:32 AM

Can anybody square the circle for me how the liberal Dems can love both stare decisis and a living/evolving constitution?

Posted by: Rick T. at January 13, 2006 9:47 AM

Certainly, Rick T. The question is "Is this precedent one that supports my particular social-justice hobby-horses or one that blocks it? If it supports my pet project, stare decisis to the last man/womyn/whatever. If it blocks my pet project, well the constitution is evolving as any living document should and needs to be reinterpreted in light of changing social mores/dynamics."

It's that easy. For practice, watch how the Episcopal Church has the Holy Spirit "doing a new thing" as soon as Frank Griswold gets a bee in his miter about something or another.

Posted by: Mikey at January 13, 2006 10:54 AM


The decisiveness of the stare is in the eyes of the beholder.

Posted by: oj at January 13, 2006 11:33 AM

"I saw some very smart people and very privileged people behaving irresponsibly, and I couldn't help making a contrast between some of the worst of what I saw on campus and the good sense and the decency of the people back in my own community."

"In interpreting the Constitution," Judge Alito said Wednesday, "I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption."

Posted by: Robert Schwartz at January 13, 2006 11:51 AM


If any of these reluctant, unable to get-connected apologizers would like, I can drop their letters of contrition off at McCain's office in Phoenix.

Posted by: Brandon at January 13, 2006 11:54 AM

It's so embarrassing when conservatives act just as small and petty as liberals.

Posted by: oj at January 13, 2006 12:00 PM

Hit the post button too fast.

1) This guy is profoundly conservative. If he were free to post on this board, it would be a race between him and Lou. Harriett Miers cannot be that conservative because she never had to live in an enviroment like Ivy League colleges in the 1970s. She lived in the sheltered enviroment of Dallas. Alito had to grapple with and overcome liberalism as a living, albeit diseased organism. He has also had to work out his constitutional understanding.

2) McCain is not off the hook. He is still responsible for the miserable abomination of CFA and the stupidity of his "anti-torture" bill. My slogan on McCain is still: "A Talking Duck Would Be Better."

Posted by: Robert Schwartz at January 13, 2006 12:03 PM

Mikely & OJ:

Thanks, that's about what I thought.Depressingly less scholarly than I had hoped for.

Posted by: Rick T. at January 13, 2006 12:16 PM

David Cohen:

You really think the filibuster deal had much to do with Miers's withdrawal? That was the result of much sincere but still irritating caterwauling on the Right about her supposed lack of qualifications.

Also, being purposely vague in one's responses to hypocritical gasbags like Ted Kennedy is practically a tradition in judicial confirmation hearings these days. Harriet Miers would've been no different.

Posted by: Matt Murphy at January 13, 2006 1:00 PM


I would vote for McCain over any Democrat, and over most 'name' Republicans out there now, but like Robert (Schwartz) said - McCain has lots of very dumb bills with his autograph on them. Plus, he was chair of the Commerce Committee when the 1996 Telecommunications Act was passed, which did more to puff up the stock market bubble than anything except the Y2K hysteria.

Lots of candidates jump into the race without much of a record behind them, other than their limited public characters and fawning statements to their various bases. McCain is different - his record is not exemplary and his public character (while cheerful and often more genuine than most) includes direct attacks on the GOP base. And we're not talking Sister Souljah moments, either.

Can he eat enough humble pie to get nominated? Perhaps. Because that is what it will come down to, especially if the war is in the distant past and the economy is at about the same level of performance. Sure, he can win 45 states in the general election - but can he aks for and get Republican votes in the primaries, particularly when lots of angry elites are going to oppose him? You know the type, the ones who hang out at the blue masthead and a number of other locations.

Posted by: jim hamlen at January 13, 2006 3:15 PM


No one wins the GOP nomination without being next on the totem pole. McCain is next. The 45 state thing is why the Bushies support him--plus that he'll be a one termer and leave the '12 race to Jeb. He remains very popular here in NH so he has a lock on an early big victory. There's no one conservative for folks to rally behind to try to stop him in SC. It's over.

Posted by: oj at January 13, 2006 3:29 PM

Look; I don't want to make the perfect the enemy of the good. McCain does deserve some credit for taming the Filibeast. But he didn't slay it, giving it the public execution it so richly deserves. It was a tactical victory, but a strategic stalemate. This was a teachable Constitutional moment, and the moment was lost. It would have shown much more leadership to force the issue and let Cheney cast the deciding vote if need be. Even if we lost, the voters would at least know where it stood and what to do about it. I simply prefer the Great Promise adopted by the Gang of Thirteen States to the Great Compromise offered by the Gang of Fourteen.

I am also allergic to McCain's prediliction to ban political speech. Again, I prefer the Constitution. Not to mention his propensity to grandstand for the Times.

All that said, were he the nominee, I'd support over ANY Democrat, who are seemingly bent on being both the Evil AND Stupid Party. He is a patriot, a conservative and fought for my freedom when I was but a child. That goes a long way with me. But my first political allegiance will always be to my country and its Constitution.

Posted by: Noel at January 13, 2006 9:37 PM

Strange sort of stalemate where you win every battle.

Posted by: oj at January 13, 2006 9:43 PM

It's a strange sort of victory that disregards the Constitution's mandate for a simple majority vote.

Posted by: Noel at January 13, 2006 9:53 PM

Ah, but we're conservatives, not literary types. The filibuster has a long and important tradition.

Posted by: oj at January 13, 2006 11:59 PM

"The filibuster has a long and important tradition."

Yes, proping up the peculiar institution of the South. It's a Democrat tradition and no more worthy of respect than was chattle slavery.

Posted by: Robert Schwartz at January 14, 2006 2:13 AM


I don't see Brett Kavanaugh on the D.C. Circuit.

Posted by: jim hamlen at January 14, 2006 10:00 AM

Actually, you're one of the most literary conservatives I know of. And as a reader, I've benefited from that.

The filibuster is an old tradition, yes-- but the Constitution is older. And mandates a simple majority vote for nominees, including for instance, Mr. Bolton, on whom you've admirably come around. I know this is old ground, but, for the children, let's look at text:

"He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court..."

Advice and Consent plus a supermajority vote for treaties; Advice and Consent only for nominees. Bam.

That will not be trumped by any Senate rule nor McCain's need to make the voices stop. The Constitution is full of specific supermajority and even micro-minority requirements; but where there are none, none may be invented and inserted. This is why Sen. Byrd will quote anything and everything in defense of the filibuster--anything but the Actual Constitution.

One may make an argument, although weak, for a legislative filibuster, but not a nominative filibuster. Why weak? Because of this:

"The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided."

'Equally divided' implies a simple majority vote. If every vote is subject to the sudden imposition of a super-majority requirement, we've taken the Vice-President out of the Constitutional scheme.

Posted by: Noel at January 14, 2006 10:11 AM


Hillary has a hold on him. He's not being filibustered.

Posted by: oj at January 14, 2006 11:53 AM


The Constitution didn't require that presidents step down after two terms either, but it was an important tradition.

I like Bolton because I think we need a p**ck at the UN. But because he is one I don't have a problem with folks filibustering him.

Posted by: oj at January 14, 2006 11:54 AM


When FDR flaunted that tradition, we had to put it in writing for him. We amended the Constitution--and we did it the old-fashioned way, not by a Senate rule.

Here's a two-term-er who presumably knew something about the subject: "It cannot be presumed that any clause in the constitution is intended to be without effect."--James Madison

And the man who started the tradition?

"The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the constitution which at any time exists till changed by an explicit and authentic act of the whole people is sacredly obligatory upon all."--George Washington, the Greatest American of all, despite having violated FISA by his sentries' warrantless search Major Andre's boot.

We do indeed need Mr. Bolton at his job. And we'll still need him there when his portfolio expires because the Senate failed to honor the Deal we made so long ago.

Posted by: Noel at January 14, 2006 12:48 PM

Yes, the Senate, being more conservative than a Democrat, has written rules of its own, as provided for in the Constitution.

I don't necessarily disagree that they should do away with the filibuster, but the desire not to do so, that McCain is vindicating, is conservative. The desire to dispose of it is radical.

Posted by: oj at January 14, 2006 12:54 PM

I know. King George thought the same thing. Jeff Davis, too. It's a radical change when one stops smoking, but I'd still recommend it.

Ever heard anyone say this:

"I do solemnly swear that I will support and defend the rules of the Senate against all enemies, foreign or domestic..."?

Me neither. If this be radicalism, then make the most of it.

Posted by: Noel at January 14, 2006 2:00 PM

Ah....a 'hold'. Another arcane Senate tradition that is just a bit more than conservative.

Hillary denies holding Kavanaugh, although it is pretty clear that she is behind it. What bothers me is that neither Frist nor Specter has done anything to get his nomination voted on in the Committee. Supposedly, he was outside the agreement made by the "Gang", but if Hillary hates him that much, then why doesn't the GOP use him as the filibuster buster? If Frist did his job, Byrd and a few other Dems would back off before letting Hillary Clinton be the catalyst for changing Rule XXII.

Everything I have heard or read in the past couple of months indicates that Frist has the votes, even if Specter doesn't go along. I guess John Warner and/or Hagel and/or one or both of the sob sisters agreed to support it.

Posted by: jim hamlen at January 14, 2006 8:50 PM

frist is a pansy of the first order. hillary probably sends him out to purchase personal items for her.

Posted by: toe at January 14, 2006 9:00 PM


Sorry if my last comment sounded harsher than I intended. Here's what I meant: Our Founders had a revolution that was not so much a French/Soviet Radiant Future-style revolution, but one that revolved back to what they saw as their 'Rights as Englishmen'. Jeff Davis claimed the mantle of the Founders, but Lincoln had the truer claim to the Declaration and the abolitionist impulse of Franklin, Hamilton, Adams & Washington.

And it's radical when one ceases to smoke. But wasn't the more radical act when one started smoking? I realize this may not be the best analogy, as you maintain that "smoking=bestiality"(Note to self: Do NOT send oj out for pack of Camels!). Despite your disregard for the Geneva Rights of Californians and other such captive peoples, when one takes the wrong fork, the conservative thing to do is to retrace one's steps, not to continue down the wrong road out of tradition.

McCain's impulse seems less out of tradition than out of the conservative impulse toward courtliness. Sort of like not mentioning Aunt Sally's moustache. But Democrats have grown an opposable thumb out of the middle of their collective and collectivist forehead and should not be enabled in their denial any longer. The filibuster gives them power which they have not earned, either structurally or electorally.

And the stakes are high, as this is the way we staff the judicial branch and the departments, two institutions that have somewhat run amok. If Democrats want to control these functions, perhaps they should sail their ships back from the place marked "Dragons Live Here!", convince some voters and win some elections.

Now THERE'S a radical idea.

Posted by: Noel at January 15, 2006 9:32 AM