Thursday, January 26, 2006

NYT to Dems - Filibuster Alito!

It is very rare that you'll find me agreeing with anything that the New York Times editorial page has to say. Indeed, one of my guideposts on controversial issues is to find out what they think, and that inclines me to the opposite. But they've got an editorial today of which I wholeheartedly approve. At least, I approve of the course of action that they're recommending.
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.

A filibuster is a radical tool. It's easy to see why Democrats are frightened of it. But from our perspective, there are some things far more frightening. One of them is Samuel Alito on the Supreme Court.

I would love to see the Democrats filibuster this nomination. Love it.

I disagree, of course, with all of their reasoning. And I think that the course of action that they're recommending is fantastically short-sighted, at least from their point of view. I don't think that they'll be "almost certainly" be able to invoke cloture on the nomination. I suppose that they might, but I think what would happen is that a cloture vote would fail, at which point in time the Republicans would change the rules. And the filibuster would be gone as a weapon in the judicial fights.

That would be a good thing.

There was discussion earlier, when the "gang of 14" came up with their Memorandum of Understanding, about whether this would, in fact, be a good thing or not. I remain convinced that it would.

Changing the rules would break the logjam on the appellate judges who are still being held. That would be a good thing. Not only would Alito be confirmed, and it would ease the course for any other potential Bush SCOTUS nominee, there are still several good nominees to various appeals courts who've not been confirmed despite majority support because they haven't been able to get 60 votes for cloture. In my opinion, both the judicial branch and the country would benefit from seating those judges.

The possible downside, that the filibuster would no longer be available when the Republicans were in the minority, strikes me as a threat that Democrats would hold over the Republicans heads, like the sword of Damocles, but it's a threat without real teeth. The reason that it's a threat without teeth is two-fold. Firstly, the Republicans haven't, and I believe, wouldn't, use the filibuster on judicial nominations. Secondly, as soon as they did, the New York Times, the Washington Post and all of the usual suspects who will decry any attempt by the Republicans to change the rules, will urge the Democrats to change the rules.

Let's suppose the (from my point of view) worst-case scenario, the scenario that people have used to frighten the Republicans into not changing the rules. Let's hypothesize a world in which a President Hillary Clinton, with a small Democratic majority in the Senate, nominates Lani Guinier to replace Antonin Scalia. Wouldn't the Republicans want to have the filibuster as a tool for stopping that nomination?

Well, Ruth Bader Ginsburg was seated on the SCOTUS with a 96-3. Would a Justice Lani Guinier be any more offensive to the sensibilities of conservatives than Justice Ginsburg? I don't see it. If they weren't going to filibuster Ginsburg, why would they filibuster Guinier?

But even more important is the fact that, if the Republicans don't change the rules, the Democrats will, as soon as it becomes in their best interest to do so. Is there any chance that a President Hillary Clinton nomination to the Supreme Court, a nominee with majority support in the Senate, could be kept off the court by a Republican minority with impunity? That a majority supported nominee could be filibustered without hysterical screeching from the legacy media? Of course not. The New York Times would compose frothy rants encouraging the Democrats to, for the good of the country, change the rules to overcome the obstructionists, so that they could back to the work of the American People...

The rest of the editorial is, of course, nonsense. Intellectual dishonesty on a really professional level.
The Alito nomination has been discussed largely in the context of his opposition to abortion rights, and if the hearings provided any serious insight at all into the nominee's intentions, it was that he has never changed his early convictions on that point. The judge — who long maintained that Roe v. Wade should be overturned — ignored all the efforts by the Judiciary Committee's chairman, Arlen Specter, to get him to provide some cover for pro-choice senators who wanted to support the nomination. As it stands, it is indefensible for Mr. Specter or any other senator who has promised constituents to protect a woman's right to an abortion to turn around and hand Judge Alito a potent vote to undermine or even end it.

Does anyone want to guess what would happen to "a woman's right to an abortion" in the state of New York (or New Jersey or California or Massachusetts or Maryland or Delaware or...) if Roe v. Wade was overturned?

Nothing. Not a damned thing. There are certainly states where the law would change, but the issue would go back to the states, where it belongs. Roe v. Wade is a constitutional obscenity, and only good things could come from overturning it.
There was nothing that Judge Alito said in his hearings that gave any comfort to those of us who wonder whether the new Roberts court will follow precedent

This always offends me, this high-minded encouragement from the left that justices MUST pay appropriate obeisance to "precedent." What if the precedent was badly decided? What if it it's just plain wrong?

The New York Times isn't concerned with precedent - they're concerned with abortion rights and affirmative action, they're concerned about protecting precedents with which they agree. Period. It's just dishonest to couch this debate as a debate about "precedent."

In closing, I'd like to join the Times in encouraging the Democrats to filibuster. Go ahead, guys - when that cloture vote on the Alito nomination comes up, vote "NAY!"

And then we'll be encouraging Republican Senators to show a spine...

Update: Love Tom Maguire's take: "If this is the new threshold for base-rallying by the Dems, well, go ahead - make my day."

Tags: Alito, NY Times



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