Durbin Says Filibuster on Alito Still Possible

by Chris Bowers, Fri Jan 20, 2006 at 08:33:22 AM EST

This is clearly a very close whip count:U.S. Sen. Dick Durbin (D-Ill.) announced Thursday he will vote against Judge Sam Alito for the U.S. Supreme Court. And he said so many other senators intensely oppose Alito that they may have enough votes to sustain a filibuster against the conservative jurist.(...)

As the No. 2 Democrat in the Senate, it's Durbin's job to count votes for and against Alito. He said he won't know until Tuesday if there are enough strong opponents to filibuster Alito's nomination.

"A week ago, I would have told you it's not likely to happen," Durbin said. "As of [Wednesday], I just can't rule it out. I was surprised by the intensity of feeling of some of my colleagues. It's a matter of counting. We have 45 Democrats, counting [Vermont independent] Jim Jeffords, on our side. We could sustain a filibuster if 41 senators ... are willing to stand and fight.

"We're asking senators where they stand. When it reaches a critical moment when five senators have said they oppose a filibuster, it's off the table. It's not going to happen. But if it doesn't reach that moment, then we'll sit down and have that conversation."

When I was down in DC, I heard some people optimistically argue that Republicans would not try and use the nuclear option if Democrats filibustered Alito, simply because going down that path would be extremely poor timing around the SOTU, the start of the legislative session, and the start of an election year. I have no idea if that is a likely scenario, as I also do not know if Democrats will actually be able to round up the votes on a filibuster. Clearly, however, the situation is extremely close, and the next reporter who writes or says that Alito is "likely" to be confirmed is either not paying attention, or needs to come clean about their connections to the Republican Noise Machine.

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Nuclear Option

Is it at all clear that Frist has the votes to impose the Nuclear Option? Frankly, I believe if he did, he'd have already pulled the trigger.

Besides, assuming they did have the votes, I'm not really clear why we should be more afraid of the Nuclear Option now rather than at some point in the future. Presumably, the Reps will impose the Nuclear Option when they need to do so to break a filibuster. Why do we care if they break it over an objectionable nominee like Alito as opposed to some other objectionable nominee in the future? If they don't go nuclear now, they will when they need to, right? So, why worry about it?

by danielj 2006-01-20 08:46AM | 0 recs

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One can't

"pull the trigger" on the "nuclear option" unless a filibuster is taking place, and a "point of order" is raised...

jesus.

by NCDem 2006-01-20 09:06AM | 0 recs

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Re: One can't

If Frist had the votes, the Republican moderates may not have had the incentive to make a deal with the Dems.

by danielj 2006-01-20 09:17AM | 0 recs

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What in the flying fuck

are you talking about?

The Republican Moderates making the deal with the Democrats WAS the public slap-on-the-face/declaration to Frist that he didn't have the votes.

by NCDem 2006-01-20 10:37AM | 0 recs

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Re: What in the flying ****

Isn't that what I said?

Sorry, I'm going to rate you down because of your language in the subject heading. Disagree with me all you want, but please respect the forum.

by danielj 2006-01-20 10:47AM | 0 recs

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Re: What in the flying **** (fuck)

The Republicans moderates made a deal with the Democrats. Ergo... Frist doesn't have the votes.

Do you not see how this is COMPLETELY different from your statement?

"If Frist had the votes, the Republican moderates may not have had the incentive to make a deal with the Dems."

I shall correct it for you...

"If Frist (delete "had the"... replace with "does not have the") votes, (insert "because") the Republican moderates (delete: "may not have had the incentive to make" insert: "made") a deal with the Dems."

NCDem

p.s. I spurn "mojo".

by NCDem 2006-01-20 11:15AM | 0 recs

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Re: What in the flying **** (fuck)

also, delete "If"

by NCDem 2006-01-20 11:16AM | 0 recs

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Re: What in the flying **** (fuck)

Durbin needs 41, or the filibuster is off, so:

KEEP THE PRESSURE UP, CALL YOUR SENATORS!

If Repug, tell them "No" to Alito; if Democrat: FILIBUSTER!

(The phones are ringing off the hook in Washington; you might want to try your senators' local office. And, if they've turned off their answering machines for the weekend, fax 'em. Contact info below:)

CALL YOUR SENATORS (Click here)

Phone, fax, and email addresses for the Judiciary Committee.

Frist is denying Democrats time to speak on the floor. We need to get the word out about why Alito needs to be filibustered:

Write a letter to the editor of your local news paper.

People for the American Way has collected nearly 65,000 signatures to send to the Senate, please add yours: Save the Court Petition

by judybrowni 2006-01-20 03:28PM | 0 recs

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Re: One can't

the nuclear option is a change in senate rules of order to make the vote on cloture a simple majoirty rather than requiring 60 votes. senate rules are very complicated and i am more frmailiar with robert's rules, so i can't say for certain when that sort of rule change could occur but my assumption is that you can amend the senate rules whenever you have the votes and a motion on the floor to amend them. do you know that to be incorrect NCDem?

additionally you don't "pull the trigger" on nuclear weapons, it is a mixed metaphor from firearms. you most likely turn the key in the case of ICBMs, right?

by MrT 2006-01-20 09:18AM | 0 recs

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Re: One can't

Normally, Senate rules require a 2/3 vote to change them. Frist, in no way has the votes to do this...

However, this is not the "nuclear option". The "nuclear option" is not, as you suggest, merely an attempt "to change the senate rules [in] order to make the vote on cloture a simple majority rather than requiring 60 votes."

Rather, the "nuclear option" is concerned specifically with judicial appointments. In order to enact the nuclear option, a "point of order" would be raised declaring that specifically filibusters of judicial appointments are unconstitutional. Cheney would rule on this point of order. Democrats would appeal the decision to the chair (a Republican), and Republicans would immediately move to lay the motion on the table (which is non-debatable), and then a simple majority would act on the chair's decision. Republicans would then establish a precedent that judicial filibusters are out of order.

No, Frist doesn't have the votes to do that right now, but WE KNOW THAT!!!! That's what the whole frigging debacle with the gang of 14 was about. They "preserved" the filibuster by publically declaring to Frist et al. that they wouldn't go for the "nuclear option" except in "extreme circumstances". THAT WAS THE WHOLE POINT!!!

So, I certainly mis-typed "unless a filibuster is taking place"...

I should have typed "unless a filibuster is declared"... (and the gang of 14 dissolves)

No, Frist doesn't have the votes to fuck with the filibuster... BUT WE KNEW THAT!!!

by NCDem 2006-01-20 10:30AM | 0 recs

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Wow

I think a filibuster would be the best politcal move Senate Dems could make since appointing Harry Ried.

They need to draw a line somewhere, anywhere and say no more--we won't go any further. This risk is worth taking. Stand up to Bush and co. They are weak and they can be beaten.

This is the kind of thing we should be focusing our energy on --not tweety bird. yech.

by aiko 2006-01-20 08:58AM | 0 recs

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When it will matter

Democrats need to filibuster now, so that when Alito proves to be as radical as we know him to be we can say 'we did our part.' If we do not filibuster, we really have nothing to say when abortion is illegal, wiretapping is legal, the President's opinion of a law trumps Congress', and we are down to one imperial branch of government.

by dhonig 2006-01-20 09:09AM | 0 recs

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Fibilbuster and

threaten to shut down the senate if Frist vies for nuclear option.

But if the nuclear option is used...announce that a Democratic Senate and President will pack the courts like a can of sardines with our judges.

by kmwray 2006-01-20 09:18AM | 0 recs

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filibuster

The Senate Dems and GOPs have agreed to vote on Alito by January 31 -- I think the 29th is the tentative date. The SOTU is on January 31. I think that having the Alito vote just before SOTU is a win-win-win for the Democrats.

When Bush plays a president on TV, he doesn't play a scrapper who ekes out a win. He plays a bulldozer whose victory is inevitable. When it's a close one, and he wins, he smirks. He absolutely cannot play the good sport. He gets pissed off at a reporter for speaking French, or a web site that dares to sell anti-Bush trinkets.

Alito might be defeated on a simple vote. Not likely, but if so, it's a clear win for the Dems, just before SOTU.

If the Dems filibuster, then the filibuster will be overridden the old fashioned way, or it will succeed, or the Gops will try the nuclear option.

If the filibuster fails, Bush will have won, but he won't get to play the juggernaut before whom the very earth trembles. He cannot fail to be graceless, on TV, after such a victory. It just isn't in him.

If the filibuster succeeds, again, Bush has to swallow his defeat as he's getting his SOTU makeup on. God knows what he'll say.

The nuclear option is risky for the Gops. Many Americans still root for the little guy. You never know what traditions Americans really cherish until you mess with them. Look at FDR's court-packing plan.

The drama of the nuclear option will probably play out, and be settled, on the very day of the SOTU. Bush has to have Alito before the SOTU; otherwise people might notice just how much of a weakling he really is. But the drama means more people than usual will be paying attention, and might pick up some hint of the damage Alito intends to do to democracy, liberty and sexual license. They won't be pleased.

If the nuclear option fails, the moderates (John McCain?) will be the heroes, who prevented the movement Right from changing the rules (again) so they'd win. That is, the moderates will be heroes for defeating Bush just hours before Bush's big speech.

Still better, the nuclear drama will star the Administration's Number One Bully, the picture of Dorian Bush himself, namely, Dick Cheney. He'll have to preside over the Senate, and might well cast the deciding vote. In any circumstance, the more public attention on Cheney, the better for Democrats.

The Alito/SOTU showdown should be hyped like the Super Bowl.

by drlimerick 2006-01-20 09:26AM | 0 recs

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I think it's obvious

now that the Dems will have 41 "No" votes on confirmation, if only barely (I think you can only count on Nelson, Landrieu, and maybe the two Arkansans to vote Yes). The only real question then is are there any other Dems who would split their vote -- No on confirmation, Yes on cloture. Sounds like only one of those, maybe two, would make a filibuster a sure failure (although still potentially a winner politically for Reid). I find it hard to believe there won't be one of those, and my own Sen. Salazar seems to be warming up to do just that, among others.

What do people think about going ahead with a filibuster even if they know it's going to fail?

by ColoDem 2006-01-20 09:40AM | 0 recs

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Re: I think it's obvious

People who believe in what they are doing stand up and are counted even if that means they will get whacked for doing so.

Democrats need to vote No on Alito's confirmation then they need to filibuster him with passion. If they lose they lose fighting for their principles.

by Curt Matlock 2006-01-20 10:00AM | 0 recs

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Re: I think it's obvious

There's no sense in having principles if you don't plan to stand up for them. Ask any Republican.

by drlimerick 2006-01-20 12:29PM | 0 recs

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Re: I think it's obvious

I wouldn't worry about Blanche Lincoln at all; if the Democratic Strategy is to filibuster, Lincoln'll be there; I'm sure she has her major doubts about him as well, plus she's not facing reelection until 2010. Mark Pryor is another story, however, but if people like Baucas, Bill Nelson, and Salazar are going to be voting no, it is rather likely he will too. I'm not worried about Inouye either. However, it's possible that Landreui might vote yes, seeing how she is getting less popular in an increasingly red state, but Landreui on many occasions has shown to hold the party line on extremely important votes such as these.

I'm personally worried about Robert Byrd the most..

by KainIIIC 2006-01-20 12:40PM | 0 recs

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Re: I think it's obvious

Picking up momentum on its own because of the drama. One of the cable movie channels was running Mr Smith Goes to Washington this afternoon. Too bad Alito didn;t try to shut down a boy scout camp. Tghe strip search of the 10 year old girl was a lot worse, though. And the MSM has performed about like it did in the movie. As an adjunct of the money guys.

by David Kowalski 2006-01-20 12:53PM | 0 recs

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Please contact your Republican Senators

particularly in places like Maine, Rhode Island, Nebraska, Ohio, South Carolina, Virginia, and Arizona.

If they simply vote NO on Alito then they sustain the position of the gang of 14 and avert the filibuster and avert the republican nuclear option. They also assert their independence from the failing administration of George Bush and from the theo-cons.

Contact the Gang of 14 and urge them to simply vote NO on Alito.

Republicans
John S. McCain III, Arizona
Lindsey O. Graham, South Carolina
John Warner, Virginia
Olympia Snowe, Maine
Susan M. Collins, Maine
R. Michael DeWine, Ohio
Lincoln Chafee, Rhode Island

Democrats
Joseph I. Lieberman, Connecticut
Robert C. Byrd, West Virginia
E. Benjamin Nelson, Nebraska
Mary Landrieu, Louisiana
Daniel Inouye, Hawaii
Mark Pryor, Arkansas
Ken Salazar, Colorado

by Andrew C White 2006-01-20 10:09AM | 0 recs

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Re: Please contact your Republican Senators

Preserve the filibuster? The filibuster was designed for the opposition party to delay or stop treaties, legislation, and appointments. The gang of fourteen has seven Republicans. These seven senators are THE deciding factor of when and where the filibuster is to be used. So seven senators from the party in absolute power now control the filibuster's deployment. Now let us talk about the actual viability of the filibuster, but let's skip preservation.

by Citizen80203 2006-01-20 06:22PM | 0 recs

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Re: Please contact your Republican Senators

You missed the point of my post which was to convince them to vote NO on Alito so that we can defeat him outright.

by Andrew C White 2006-01-21 02:01PM | 0 recs

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If Republicans invoke the nuclear option

it becomes the defining issue for Senate elections through November.

Democrats can stand firm and Republicans up for election can join them and save themselves from having to defend their parties destruction of Senate rules for partisan purposes:

Republican Senators up for election in 2006

ARIZONA: Jon Kyl (R)
INDIANA: Richard G. Lugar (R)
MAINE: Olympia J. Snowe (R)
MISSISSIPPI: Trent Lott (R)
MISSOURI: Jim Talent (R)
MONTANA: Conrad Burns (R)
NEVADA: John Ensign (R)
OHIO: Mike DeWine (R)
PENNSYLVANIA: Rick Santorum (R)
RHODE ISLAND: Lincoln D. Chafee (R)
TENNESSEE: Bill Frist (R)
TEXAS: Kay Bailey Hutchison (R)
UTAH: Orrin G. Hatch (R)
VIRGINIA: George F. Allen (R)
WYOMING: Craig Thomas (R)

by Andrew C White 2006-01-20 10:15AM | 0 recs

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Re: If Republicans invoke the nuclear option

Snowe, DeWine, and Chaffe are part of the Gang of 14 and also Republicans up for re-election. Snowe is considered safe but both Chaffe and DeWine would lose if the elections were held today. Dont squeeze the Charmin, squeeze the Republican "moderates."

by David Kowalski 2006-01-20 12:56PM | 0 recs

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I Would Like

to see a full-blown filibuster, but at a minimum why not very extended debate until the Administration gives on the wiretapping?

by Bob H 2006-01-20 10:16AM | 0 recs

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a filibuster

IS a very extended debate... which can be cut off with 60 votes...

by NCDem 2006-01-20 10:42AM | 0 recs

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whether to gamble on the nuclear option or wait

Assuming that Democrats pick up some number of seats in November, the nuclear option would likely be off the table. Without 50 votes in favor of the "point of order", the current understanding of the rules (i.e. filibusters are allowed for judicial appointments) will remain in place. So if we are not sure how the votes pan out today, but with a 3 or more seat pickup in November would be pretty confident of defeating it, does it make sense to gamble now and, if we lose, have the filibuster unavailable despite even a 5 seat pickup in November? I'm not sure of the answer, but I know it complicates the analysis.

by garys 2006-01-20 12:20PM | 0 recs

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Re:whether to gamble on the nuclear option or wait

Bingo!

Someone finally gets it. This delusion that Alito is going to be stopped or is even stopable is simply a bunch of people talking themselves into believing in things that are not logical.

It is highly unlikely that a filibuster can be sustained and most reasonable Democrats understand this and thus they don't want to talk about it because it just puts up a false hope and then looks like they backed down from it. In the rare occassion where a 41 vote filibuster could be sustained (and I am talking about this just to cover all the bases because it is so unlikely to get to this in the first place) well then the filibuster is so weak that the nuclear option will be detonated. Most reasonable Democrats are quite aware of this and is probably a big reason behind their not wanting to filibuster in the first place.

The ease with which the nuclear option can be deployed following a filibuster of Alito is going to make it a breakaway shot at an empty net. A filibuster doesn't keep Alito off the court all it does is make future controversial appointments harder to stop.

Thats the deal. Deny it all you want, but thats the deal. Alito is on the court.

by lynx 2006-01-20 12:44PM | 0 recs

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Re:whether to gamble on the nuclear option or wait

funny how reasonable works out to agree with you. rather than saying things like reasonable- say the persona agree with you- that's a more honest post than reasonable

by bruh21 2006-01-20 02:35PM | 0 recs

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You are wrong

Future appointments? As I posted above;

It is all about forcing the Administration into either withdrawing Alito, or the GOP caucus into USING the nuclear option.

by Citizen80203 2006-01-20 06:34PM | 0 recs

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Re: You are wrong

There is still a decent possibility there could be another supreme court appointment in this administration.

But the real place the filibuster will be used is on all the other federal courts. And it would be much less likely for the Republicans to use the nuclear option on those.

But if you remove it now the rest of the federal judiciary gets much easier to pack. Plus if there is another supreme nominee you guarantee yourself of someone like Alito or further right. Another nominee may very easily have certain characteristics that can sustain a filibuster.

How blind do you have to be to not see this. Its very frustrating trying to make logical points to people who are so busy shouting and stomping mad about the administration that they refuse to see things strategically.

For all the take about which side of the fence is in the reality based universe, I don't see a lot of evidence of reality based universe on this issue.

by lynx 2006-01-20 07:13PM | 0 recs

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Re: You are wrong

"But the real place the filibuster will be used is on all the other federal courts. And it would be much less likely for the Republicans to use the nuclear option on those."

Less likely as in the sense of when they completely tried to invoke it in order to force Owen and Brown through a fillibuster?

by Valatan 2006-01-21 07:59AM | 0 recs

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Another approach

Some have suggested filibustering and making it known that, if the GOP goes nuclear, we would pack the courts when we regain control. Might be a good tack. Another approach, however, might be to filibuster, let the GOP nuke, and promise that, if we regain a majority, we'll change the rules back. The argument would be that no party should have such tyrannical control over the Congress. We can contrast ourselves with the GOP as the party of government reform versus the power-hungry zealots.

by bluenc 2006-01-20 12:44PM | 0 recs

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Re: Another approach

Two loser strategies.

#1. You go nuclear and we will go idealogically crazy. You don't announce something like that. Sounds really mature.

#2. You don't play fair but we will. Sure and why don't you ask to be kicked in the groin while you are at it too?

Look people, you win some you lose some. This one goes in the loss column. Sure are a lot of people seeing how much energy they can burn on a loser though.

by lynx 2006-01-20 12:49PM | 0 recs

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Can't They Dignify Their Stand

with a filibuster?

Lynx, I'm getting your point, or starting to. But somewhere the Dems have to start TAKING A STAND and stop looking like the spineless floor mats that Republicans are stomping on.

There are so few of them speaking out, and after Gore's speech and Conyer's meeting, in my mind they need to stand up now.

Since any votes on NSA or FISA are a long time away, why not at least go down with a little noise? Each one stand up and state that they know it's a lost cause but they are against it and here is why.

Too Don Quixote? I'm just tired of seeing bulldozer tracks across the House and Senate floor.

by zesty grapher 2006-01-20 01:25PM | 0 recs

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Re: Can't They Dignify Their Stand

The point to take the stand is on all the other issues that are going on right now. Don't you think there are enough issues to stand on and differentiate right now?

And besides all of the issues that should be easy to stand up on which looks better for an argument to the electorate:

(1) We filibustered and stopped a nominee to the supreme court that was out of the mainstream --- to most people not totally plugged in that reads as : typical partisan politics, same old, same old.

(2) Repubs controlled the white house and both branches of congress and what did they do? corruption, and ideological court packing by running over the minority with their slim majority force.

This should be a much easier argument and much more compelling.

Especially when you can't stop this thing. Alito is going on the court. The anger and rage is causing people to act irrationally, including some members of the Senate. I think cooler heads are prevailing which is why there isn't going to be a filibuster because its JUST PLAIN DUMB.

But what do I know, I have been reminded about how Wrong I am by those who have some good rage going.

by lynx 2006-01-20 07:21PM | 0 recs

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Re: Can't They Dignify Their Stand

If the dems force an already unpopular republican congress to change the rules of the game midstream in order to force through a candidate, it can only hurt them.

Fillibustering Alito is not a strategy mutually exclusive with highlighting the Republcan corruption. They tie together. one of the big arguments against Alito is that he would likely (attempt to) codify all of these right wing power grabs into law.

Relate that to the wiretapping scandal, to the K street project, etc. And then point out that they broke the senate rules in order to ram through a guy who is willing to support the culture of unlimited executive power and the corruption that goes with it. I don't see why a fillibuster would possibly be a bad idea.

by Valatan 2006-01-21 08:06AM | 0 recs

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Re: Can't They Dignify Their Stand

Because the filibuster can't succeed. I have laid out the reasons so there is nothing left to say to those who refuse to see it.

by lynx 2006-01-21 09:40AM | 0 recs

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Re: Can't They Dignify Their Stand

Even an unsucessful fillibuster accomplishes something. That was my point.

by Valatan 2006-01-21 12:50PM | 0 recs

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Re: Can't They Dignify Their Stand

Yes it does. It removes the filibuster for all future court nominees. So if thats what you are after then by all means, lets filibuster.

by lynx 2006-01-23 05:23AM | 0 recs