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What Good is the Filibuster, If You Don't Use It?

Extraordinary Alito

by MICHAEL CARMICHAEL

"He who is prudent and lies in wait for an enemy who is not, will be victorious."

Sun Tzu, The Art of War

At the end of last week, Senate Minority Whip, Richard Durbin informed the press that there was intense Democratic opposition to the nomination of Samuel Alito to the Supreme Court.

Furthermore, Senator Durbin stated that he would vote against Alito and that the Democrats might have enough votes to sustain a filibuster. There are forty-four Democrats in the senate plus Senator Jim Jeffords. Almost all of them oppose Alito.

In the senate, it takes forty-one votes to sustain a filibuster. At this point in time, no Democratic senator has stepped forward to announce his intention to filibuster the Alito nomination, but it is still too early to announce such plans. As Senator Kennedy clearly stated two weeks ago when he was bombarded with questions about a filibuster, the parliamentary tactics will take care of themselves, and there is little to be gained in discussing them openly at this time for that would be tantamount to sending a telegraph to the Republicans revealing the anti-Alito strategy.

Today, I propose that the Democrats are in a win-win situation vis a vis the Alito nomination, but they must oppose him with every ounce of the vigor they used to defeat the unacceptable Supreme Court nominees of previous Republican presidents.

In the 1970s, through a positively outrageous series of political maneuvers, Richard Nixon attempted to pack the Supreme Court with segregationists. He nominated Clement Haynsworth, who was repudiated because of his extremist views on segregation. Haynsworth had even written decisions in cases where he held a personal financial interest. Fifty-five (55) senators voted against Haynsworth, and only forty-five (45) supported him. In retaliation for the defeat of Haynsworth, Nixon nominated another arch-segregataionist, G. Harold Carswell. The Democrats rejected him because he was not only a segregationist; he had openly advocated white supremacy for over a quarter of a century. Carswell got only forty-five (45) votes to fifty-one (51) cast against him. After two stinging defeats of two stalwart segregationists, Nixon capitulated and nominated a more moderate conservative, William Rehnquist, who was confirmed. In the 1980s, Ronald Reagan nominated the radically conservative jurist, Robert Bork, who went down to defeat ­ forty-two (42) to fifty-eight (58).

Today, there are fifty-five Republicans in the Senate and forty-four Democrats. Against Alito, the Democrats have the support of Senator Jim Jeffords, an Independent. Even so, in a straight up or down floor vote, Alito would be confirmed.

However, the Democrats have one parliamentary option to deploy, the filibuster. The filibuster was first used against a judicial nominee in 1968, when senate Republicans forced President Lyndon Baines Johnson to withdraw the nomination of Associate Justice Abe Fortas for the office of Chief Justice of the Supreme Court.

In May, 2005, the senate was dominated by debate over the filibuster. Senator Trent Lott threatened to eliminate the filibuster in a ploy that he termed the, "nuclear option." During that debate, Senate Minority Leader Harry Reid argued that any attempt to eradicate the filibuster would seriously erode minority rights to the freedom of speech in American government.

At that juncture, the Gang of Fourteen (14) consisting of seven Republicans and seven Democrats formed a coalition designed as a compromise to prevent either the death of the filibuster or a stalemate on judicial appointments. In recent months, three conservative judges have been narrowly confirmed, and there have been no filibusters since the bipartisan compromise. The Gang of 14 have agreed not to permit a filibuster except under, "extraordinary circumstances." Clearly, the Alito nomination falls into that category, so extraordinary is his radical resumé. Because of his judicial radicalism, the Alito nomination is causing a deep and dark schism in the Senate. Republicans appear to be united in a solid bloc behind him, while he has found only one Democratic senator, Bill Nelson of Nebraska, to support him.

During his testimony, Democratic senators were shocked by Alito’s brazen support for a radical expansion of presidential power. In announcing his support for the unitary presidency, Alito put America on notice that he will oversee an explosion of federal and executive powers. Alito will engineer the tapping of phones, the opening of mail, the surveillance of American citizens, as well as a host of other authoritarian measures.

In the future, it is clear that Alito will rule in favor of corporate polluters against environmental preservationists as he has done in the past. In the future, it is clear that Alito will draw plans for the constitutional deconstruction of Roe versus Wade as he has done in the past. In the future, it is clear that Alito will propose the end of voting rights as Americans have known them for the past forty years as he has done in the past. In the future, it is clear that Alito will permit gerrymandering, voter suppression and partisan redistricting as he has written in the past.

Her personal political preferences are patently radical. For years, Alito belonged to the Concerned Alumni of Princeton, an organization opposed to the admission of women and racial minorities to Ivy League universities. Mirroring Clement Haynsworth, while sitting on the federal bench Alito has ruled in favor of plaintiffs in cases in which he held a substantial financial interest. For these reasons, Alito is extraordinary, quite extraordinary, indeed.

Samuel Alito represents a vivid reflection of the radicalism of three of the most unacceptable Supreme Court nominees of the twentieth century: Clement Haynsworth, Harold Carswell and Robert Bork. The senate Democrats should stand against him en masse, and they should launch a filibuster. The Democrats are in a win-win situation for if Bill Frist makes good on his threat to nuke the filibuster, he will be branded as an extremist opponent of the freedom of speech ­ which he clearly is. If Frist capitulates to the filibuster, the Democrats will have won a great victory. If the Democrats lose through either cloture or the nuclear option, they will have won a great ideological victory. The only tactic that would result in the Democrats losing vis a vis the Alito nomination would be to capitulate without a filibuster, a loss of credibility that they cannot prudently afford.

Calling the Alito nomination a, "grand slam home-run," Pat Robertson has trumpeted him as an evangelical triumph of fundamentalist theocracy over constitutional democracy. This statement was imprudent of Robertson, who has a habit of making imprudent statements.

In another highly imprudent statement, Bill Frist taunted senate Democrats by stating that Alito is the, "worst nightmare of liberal Democrats." Bill Frist is betting a mountain of political capital that no Democratic senator will take up the cudgel against Alito and launch a filibuster. By insulting and enraging senate Democrats, Frist is saying that they lack the strength of their convictions. In his actions, Bill Frist has not been prudent. Due to the political circumstances involved in the Alito nomination, Frist is now in danger of falling victim to his opposition, who have been – for all intents and purposes – far more prudent than he has.

In December, one of the most influential members of the Gang of 14, Senator Robert Byrd, argued that the filibuster should never be eliminated. His remarks were timely, for the only judicial nomination on the table is that of Alito.

I say, "Bring it on." America has nothing to lose from a filibuster of extraordinary Alito, and everything to gain.

MICHAEL CARMICHAEL lives in Oxford, England. He can be reached at: mc@planetarymovement.org