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Friday, January 27, 2006

No Filibuster for Alito -- Who's to Blame?

Today, Sen. Reid announced the depressing truth that we've all been fearing: The Democrats lack the votes to mount a filibuster. Alito's rise to the Supreme Court assured, short of any stunning revelation this week, we are now left to figure out how this happened.

For those of you who don't know, a filibuster is a procedure that can permanently delay an "up or down" vote by the entire Senate. 60 votes are required to overturn a filibuster, but the Republicans only have 55 votes. The Democrats have 44 votes and usually get one more from Independant Jim Jeffords. Looking at these bare numbers alone, the Democrats have the power to filibuster any judicial nominee they choose.

Many liberal websites such as the highly informative Buzzflash have used these numbers to assail the Democratic leadership. Buzzflash called for Sen. Reid to resign for his failure to organize the Democrats and mount a successful filibuster. At first glance, I'd agree with them. Dig a little deeper, however, and it becomes clear that Sen. Reid did everything in his power to try and filibuster Alito. The problem is that although 44 Senators call themselves "Democrats," we don't have even 40 who are truly committed to our cause. The web's #1 blogger Markos Moulitsas ZĂșniga explains it better than I can:

Jeffords was a Republican and remains one of the two most conservative member of our caucus. We lose Nebraska's Ben Nelson more often than we get him because of local political factors. So we're down to 43.


Not much of a margin for error, is it?

Then consider the solid-red-state Dems --

We have two Democrats in North Dakota, one in South Dakota, and one in Montana. In the South, we have two in Arkansas, two in West Virginia, and one in Louisiana.

That's nine Democrats who, like it or not, we are blessed to have in the Senate. Shit on them if you want, but would you rather the count be 43 or 34? But fact is, we're not going to get these guys 100 or even 80 percent of the time. That is, if we want any chance at remaining competitive in the Senate.

So Reid had to hold three of these nine Red-state-Dems plus Jeffords. He got Baucus to declare a "no" vote, which was a minor miracle in its own right. Jeffords will also vote "no". But a filibuster? Much tougher. Can he get three of those ten to not just vote "no", but take the much more explosive step of engaging in a filibuster?

The problem, as Markos points out, is that we just don't have enough "real Democrats" in the Senate. Although we can and should be infuriated at conservative Democrats who hold our party down, but the reality is that conservative Democrats are totally unavoidable. Moreover, we want conservative Democrats. Why? Because the alternative is having them defect to the Republican party. It's better to have them on our side part of the time instead of never having with us. The Democrats need to be a "big tent" party that accepts people of varying political pedigrees.

Now to be clear, I don't think the Democrats should adopt some kind of wishy-washy agenda that tries to offend no one and ends up inspiring no one. I think the party needs to move to the left and be agressive about it. That's a different statement than saying that we shouldn't have conservative Democrats and accept them into our party. We just shouldn't give them any power to control the broader national agenda.

Here's the real solution to prevent the Democrats from being unable to launch filibusters in the future: Elect more Democratic Senators. It's that simple. It we have 55 "real Democrats" and 5-10 conservative Democrats, we will have the power to control the Senate without any need to placate the conservative Democrats. This fall is a huge turning point in this country. I would argue that these midterm elections could possibily be the last chance to save our fragile democracy. If we can retake the Senate (it's not realistic to retake the House, but we can make gains) we can prevent Bush choosing any more wingnut Supreme Court justices in the Scalia/Thomas/Roberts/Alito mold. We can hold Bush accountable for his crimes and begin real investigation into the various scandals that the Republican party has ignored. We can prevent conservative legislation with a mere up or down vote that causes us no political headache. We can prevent Bill Frist's chilling promise to eliminate the filibuster.

Now some people might dsy that Republicans are more united than we are and that they would have no problem filibustering a Democrat if the numbers are the same. Perhaps so. The Republicans are run like a top level corporation and people like Karl Rove repeatedly make promises to politically destroy any Republican who steps out of line. Party loyalty is a good thing, but the Republicans immorally achieve it with their thinly veiled threats to moderate members of their caucus. On the other hand, moderate Republicans such as Arlen Specter would likely be very cautious about filibustering a Democrat. The real reason for the GOP's intense party loyalty, as I see it, is that the national Republican leadership has been highly effective at ensuring that the most conservative candidate wins in the primaries. This ensures a more conservative Senate that will more likely to side with the party. Another explanation is simply that conservatism is an ideology that favors power above all else, so it should be no suprise that members willingly sell out their own beliefs in exchange for retaining and increasing that power.

In conclusion, don't bash Sen. Reid. He's a tough talker and I think he's done a decent job. Instead, let's keep up the pressure on the Republicans about the ludicrous crimes of the Bush administration. United we stand, divided we fall.

Comments on ""


Anonymous Tom said ... (5:41 PM) : 

What would filibustering achieve? Even if this stalling tactic could somehow prevent Alito from being confirmed, Bush would simply nominate another conservative Judge with the same judicial philosophy. Let's face it, you wouldn't be happy with anyone Bush appoints (you bashed Miers when she was nominated). The only thing you can do, as you suggested, is concentrate on the next election. Please no more calls for filibustering, what precedent would that establish. Don't you think the republicans would retalliate with filibustering the next democratic president's nominee to the Sup Ct?


Blogger Michael Alexander said ... (6:04 PM) : 

Filibusters should be reserved for judges whose record indicates that they will radically, fundamentally change the laws of the land. Samuel Alito is such a man. He stated that "the Constitution does not protect an abortion." He is a huge proponent of the unitary executive theory. This theory asserts that if the President believes his acts to be constitutional, then they are. This radical, activist theory threatens the division of powers within our government.

Alito's activist stance on abortion and executive powers certainly warrant a filibuster. If we filibustered Alito, Bush would be forced to pick a mainstream jurist instead of a far-right guy like Alito.

For the record, I never called for Dems to filibuster Miers. Of course I bashed her because her record was spotty at best. I also later admitted that I fed into the far-right assault on Miers in their rush to see an even more conservative jurist on the Court. Bush can do better than Alito and the people of America can do better than Alito.


Anonymous Tom said ... (8:20 PM) : 

Alito is not a radical, his judicial philosophy is in the mainstream.

Furthermore, the Unitary Executive theory isn't that radical, and it's commonly misunderstood. This theory just asserts that all the Federal Executive authority is ultimately the President's. This seems common sense and assures accountability among other things.

What the Unitary Executive theory does not do is assert the expansion the constitutional scope of the Executive branch, as people often claim it does. It just asserts where the Federal Executive branch is given constitutional powers, the president has final say.
Preident Bush could not create new taxes for example, this is not within the constitutional scope of the Executive branch (given to Congress).


Blogger Michael Alexander said ... (9:18 AM) : 

Alito is nowhere near the mainstream. His claim that "the Constitution does not protect abortion" is not mainstream. And the Unitary Executive theory was created in right-wing think tanks such as the Federalist Society as a way to justify Republican Presidents' use of extra-constitutional powers. It is not a mainstream idea. (It's chilling how Nixon, Reagan and Bush all flagrantly disregarded the rule of law. See Watergate, Iran-Contra and Warrantless Wiretaps. Clinton's only wrongdoing was perjury in a private civil suit, which is OUTSIDE of the scope of his Presidential duties.)

It is horribly radical to assert that "where the Federal Executive branch is given constitutional powers, the president has final say." Where is this in the Constitution? Where is this in precedent? We didn't run our country like this for 200 years. The Supreme Court is the ultimate arbitrer of the law. Under the frightening Unitary Executive theory, the Supreme Court holds no checks on the President's power. If the President wants to drop a nuclear weapon on San Francisco, under your outrageous theory he can just point to Article II and cackle all the way home.

Our system is that of a divided government, one that has checks and balances. The Unitary Executive theory proposes no such checks. Congress is granted Constitutional powers in the Constitution as well, and no one even attempts to claim that those acts are beyond judicial review. It is in no one's interests to have an all powerful President who treats precedent and history and if they didn't happen and uses his power in an unlimited manner.

This so called theory is the only justification for Bush's criminal use of warrantless wiretaps. That's why Bush wanted Alito; he knows that Alito will place Bush above the law.

The Unitary Executive theory is a lot like originalism -- formalistic, circular justifications for ignoring precedent and reshaping the law in a right-wing fashion.


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