The Failed Alito Filibuster

I sometimes make predictions on this blog about future events, such as how the Supreme Court is likely to decide an election law issue. Sometimes these predictions are right and sometimes they are not. I have also been making predictions about the Supreme Court hudicial nominations process since Justice O'Connor announced her intention to retire at the end of last term. For example, I correctly predicted the evening of Chief Justice Rehnquist's death that the President would renominate John Roberts for Rehnquist's seat and that the President would choose a candidate to the right of Harriet Miers after she withdrew her nomination.

But I also predicted that Justice Alito likely would not be confirmed, and of course this prediction has turned out to be incorrect. I wanted to think about why this prediction proved incorrect. Here is the core of my earlier argument:

Judge Alito will not be confirmed, because Democrats will threaten to use the filibuster for a nominee they will strongly paint as anti-choice. Moderate Republicans, such as Olympia Snowe, won't vote to trigger the nuclear option, and Judge Alito will not get a vote on the floor of the Senate. My level of confidence in this prediction: not high.

It was relatively easy for Democrats to paint Justice Alito as opposed to abortion rights, especially after his 1985 job application came to light. Yet this issue did not have the salience I expected. In part, I suspect that there is just too much lag time between the appointment of a Supreme Court Justice and decisions on hot button issues like Roe. By the time the Court actually decides a case squarely presenting the question whether Roe should be overruled, President Bush may have finished his second term, and it is not clear that voters would then blame Senators for such a vote. Indeed, if Chief Justice Roberts moves incrementally in overturning cases like Roe (such as by watering down the "undue burden" test), the movement may seem imperceptible to the public.

The other key aspect of the failure of my prediction is the inability of Democrats to hold together and to be willing to use their political capital towards what many activists in the party saw as a core issue. Democrats could not afford to have many defectors if they were going to have 41 votes for a filibuster. There are still some relatively conservative Democratic Senators (or at least Senators from relatively conservative states who want to be reelected). In the end, Democratic leaders in the Senate apparently made the calculation that a filibuster was doomed to fail and decided not to pursue it.

What is hardest to explain (except as a publicity stunt) is the late effort at a filibuster from Sen. Kerry, literally "phoned in" from a ski resort in Switzerland. As Wonkette observed, "It reflects the same shrewd political judgment and unerring strategic insight that Senator Kerry displayed in running his 2004 presidential campaign."

Where does this leave Democrats? Thought the "Gang of 14" agreement has saved the Senate from the nuclear option, it has seriously weakened the Democrats, who apparently won't be able to block any competent Bush nominee to the Supreme Court (should another nomination open up). It may still be possible to block lower stakes judicial nominees, as is apparently happening with DC Circuit nominee Brett Kavanaugh.

In the end, I think my prediction failed because I overestimated the salience of the abortion issue and the strength and savvy of the Democratic party. Thanks to Sen. Kerry, Democrats have two losses rather than one in a 24-hour period.

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-- 
Rick Hasen 
William H. Hannon Distinguished Professor of Law
Loyola Law School 
919 Albany Street 
Los Angeles, CA  90015-1211 
(213)736-1466 - voice 
(213)380-3769 - fax 
rick.hasen@lls.edu 
http://www.lls.edu/academics/faculty/hasen.html 
http://electionlawblog.org