Political Cortex: Brain Food for the Body Politic

I have no worries about the Dems going to the mat for this one.  They will fight it with every ounce they have left.  The only other option would be for them to pack up their toys and go home.  Reid has already signalled how the appointment of a "Scalito" or like-minded judge would be met.

Senator Harry Reid of Nevada, the Democratic leader, warned President Bush on Sunday not to pick one of the candidates said to be on the president's short list, Judge Samuel A. Alito Jr.  "I think it would create a lot of problems," Mr. Reid said on "Late Edition" on CNN...


And on Sunday, he did not rule out the possibility that Democrats would try to block a nominee by a filibuster or refusing to close debate and vote. "We are going to do everything we can" to see that the president names "somebody that's really good," Mr. Reid said.

I think we have seen enough of how Reid works to know that this means he intends to fight, and that he believes he has the votes to fight the good fight, and hopefully come out on top.

Specter is also preparing for a big fight, and he is the ringmaster for the first round of this particular circus.

Both sides are on edge in anticipation. "There's a lot of anxiety," Senator Arlen Specter, the Pennsylvania Republican and chairman of the Judiciary Committee, said on "Late Edition." "There could be a real tough battle here and a real tough fight, depending on whom the president puts up."

Mr. Specter said he was "very worried" about the possibility of a filibuster. "The topic which dominates the discussion, as we all know, is a woman's right to choose," said the senator, who supports abortion rights.

He continued: "You have both sides poles apart, and insistent on finding some answer to that question in advance of the hearing, which no one is entitled to. Guarantees are for used cars and washing machines, not Supreme Court justices."

Specter knows that he isn't going to force any candidates to commit to a position on future Supreme Court cases, but he also knows that the far right is unlikely to get the guarantee that they want from a nominee; which puts Alito into a difficult position as he has already got a record against a woman's rights (in favour of her husband's in Casey v. Planned Parenthood) and has ruled against privacy in other cases including the strip search of a 10 year old girl in Doe v. Groody.

Of the 18 members of the Judiciary Committee, 10 are Republicans and 8 are Democrats.  We need 10 Senators to actually stop this nomination in committee.  It is conceivable that Specter may vote against him considering that Bush did not consult the Senate, Specter is pro-Choice, and putting Alito to the floor of the Senate will destroy what is left of comity for some time in the future.  I can't think of who else would vote against Alito in committee from that side of the aisle.  There just aren't many moderates there.  DeWine might just consider it as a Hail Mary on his election, but somehow I doubt it.

Barring actual scandal, I would be very surprised if Alito doesn't make it out of committee after a very tough round of questioning.  At that point, I think that there definitely will be a filibuster on Alito.  We are likely to do go through all of the stages we saw last year.

We start the filibuster count from last year's position on judges which leads us to counting the Democratic members of the Gang of 14.  Joe Lieberman, Robert Byrd, Ben Nelson, Mary Landrieu, Daniel Inouye, Mark Pryor, Ken Salazar.  We all agree that the "Supreme Court is extraordinary", and I think that most of these Senators will think that Samuel Alito is extraordinary as well.

With Bush smelling like a "shit's shit," and such an in your face pick, I think that our resolve will be stronger this time around than last time.  They need five of those seven, and I don't have any idea how they could possibly pick up that many.  Lieberman, Byrd and Nelson are up for election with only Nelson having any worry about it.  Pryor may also be a worry but somehow I doubt it.  We should start with the carrot and keep the stick at hand for any of our 7 who think about jumping ship, but I think that the filibuster is going to happen.

That brings us to the nuclear option they need 50 Senators which is only two members of the Gang of 14, unless there are others who would vote against going Nuclear.  Their seven are John McCain, Lindsey Graham,  John Warner, Olympia Snowe, Susan Collins, Mike DeWine, Lincoln Chafee.  McCain, Snowe, DeWine, and Chafee are up for election next year; Graham, Collins, and Warner are Class II which means 2008.  That means that most of them will be susceptible to election pressure.

Snowe, Collins and Chafee will remain against the nuclear option, and even consider voting against if it comes to an "upperdown" vote, as they are all pro-Choice in predominately Democratic states.  Chafee is facing an interesting primary, but has secured the endorsement of Planned Parenthood. McCain believes in the Senate and I don't think that he'll go nuclear.  Warner voted against Bork because he didn't support the right to choose so is unlikely to go Nuclear for Alito, and may even vote against him should it come to that fabled "upperdown" vote.

Graham and DeWine remain.  I think they will at least consider going nuclear. Graham is already on record (same link as above) as going nuclear for "Scalito":

But Senator Lindsey Graham, Republican of South Carolina, fired back Sunday, saying that if the Democrats staged a filibuster against Judge Alito or Judge Luttig because of their conservatism, "the filibuster will not stand."

DeWine is a bit unpredictable with the pressure of the election coming up, he may decide he needs to distance himself from the party, or energise the base, I don't know him well enough to predict.

That appears to point to serious trouble as it gives the Republicans the 50 Senators they need, but there are other Republicans who I don't think will go nuclear.  DeWine and Graham seem like strange signatories and I think that they only signed because they know that it won't happen and it allows other Senators to remain closeted against the nuclear option.

Specter is chief among those, he didn't sign the agreement because the leadership wasn't involved (and his chairmanship was at stake) but he hinted strongly that he won't go nuclear.  I would consider Murkowski as she is pro-Choice and Alaska values "rugged individuals", John Ensign in part because of the protection he is getting from Reid, Lugar is also relatively reasonable and probably doesn't want to destroy the Senate.   Several Republicans in bluer states will have to think long and hard before they are ready to press the Big Red Button and dismantle the Senate; Judd Greg (NH), John Sununu (NH), George Voinovich (OH), and Gordon Smith (OR) are Senators who I think are open to seeing reason on the Nuclear Option given enough pressure from their constituents.

The political calculus is in our favour this time relative to encouraging the Republicans to break ranks and vote their conscience. I count to only 49 on my most pessimistic reading, that is the 55 (R) - 7 (Gang of 14) + 2 (DeWine and Graham) - 1 (Specter) = 49.  That is very close which is why I am glad there are others who I think are willing to consider backing down. The party whip is weakened and the wind is blowing in our favour.  The Nuclear Option is one of the worst abuses of the Senate that this cabal has attempted when push comes to shove, I don't think that they have the votes.

If the filibuster is indeed broken, I think that "Scalito" will indeed make the court.  There are some pro-Choice Republicans but there are enough pro-Life Dems that I don't think we can get 51 against the Judge if we can't get 51 against going Nuclear.

I expect that this nomination will not make through to a confirmation, because I don't think that it will make it to a vote.  Putting our foot down at this point is the right thing to do and a vote winner in most of the country, especially where Senators are going to be up for re-election.  We have been saving and preparing for this fight for a long time, and I think we can win it.