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The Democrats' Plan to Defeat Alito Nomination Paul Weyrich The White House was hopeful that the Senate confirmation hearings and vote on Judge Samuel A. Alito Jr. to succeed Justice Sandra Day O'Connor on the Supreme Court would be wrapped up by Christmas. The Chairman and Ranking Minority Member of the Senate Judiciary Committee, Arlen Specter, R-Pa., and Patrick J. Leahy, D-Vt., declined to proceed that quickly.
Hearings presently are scheduled to begin on January 9, 2006, and a vote should occur on or soon after January 20, 2006. Had the president nominated Judge Alito rather than Harriet Miers, he likely would have gotten his wish. The Senate could have confirmed one nomination before the Christmas congressional recess. The distraction of the Miers nomination consumed several weeks.
By contrast, Ms. Miers had a very thin paper trail, whereas Judge Alito has participated in more than 3,000 cases since becoming appeals court judge 15 years ago. He has written some 300 opinions. And like Chief Justice John G. Roberts Jr., Alito served in the Justice Department, so there is paperwork from that source to review as well.
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The White House is anxious to have Judge Alito confirmed. If Judge Alito were to be appointed to the high court early next year, he would be able to vote on several highly controversial cases. The later Judge Alito takes office, the greater the probability that Justice O'Connor will cast the votes on hot-button issues, such as parental notification relating to abortion and "under God" as permissible language in the Pledge of Allegiance.
If indeed Judge Alito were seated on the Supreme Court by January 20, it is not clear who would vote on some issues. While no one knows how any Supreme Court nominee would vote, the White House believes that Judge Alito would be more likely to vote in line with its thinking than Justice O'Connor, who in recent years became a swing vote on the Court.
Meanwhile, there is the potential for politicizing the process of Senate confirmation of the Alito nomination. Much will depend upon whether there is a filibuster.
Earlier this year, as Senate Majority Leader Bill Frist, R-Tenn., was preparing a vote to change the Senate rules to foreclose filibusters of judicial nominees so that their confirmation would require 51 votes rather than the 60 required to overcome a filibuster, Senator John S. McCain III, R-Ariz., convened a meeting in his office of seven Republican and seven Democratic senators. The "Gang of 14" agreed that in general judicial nominees should receive up-or-own votes without a filibuster. They suggested that a filibuster would be warranted in "extraordinary circumstances."
A newspaper poll taken after the agreement was reached determined that each of the 14 senators interpreted somewhat differently the meaning of "extraordinary circumstances." When the agreement first was announced, thus pulling the rug out from under Majority Leader Frist, Democrats cheered the agreement as a victory and Republicans denounced it as a betrayal of their party. Over time, Democrats reinterpreted the agreement as clearing the way for confirmation of many of the president's more controversial nominees, such as Priscilla R. Owen of Texas and Janice Rogers Brown of California to the Fifth and District of Columbia circuits, respectively.
By the way, McCain organized the 14 senators primarily because he and Frist could be rivals for the 2008 Republican presidential nomination. Had Frist been successful, he would have been able to point to that accomplishment as an example of his leadership.
Now comes Judge Alito. The Gang of 14 so-called "moderates" last Thursday again met in the office of Senator McCain. The White House had hoped the Gang would issue a statement saying that because the nominee has excellent qualifications no filibuster would be justified. Instead, the Gang took a "wait and see" attitude. Two Gang members, Senator Lindsey O. Graham, R-S.C., and Senator Mike DeWine, R-Ohio, did say that if the Gang were to disband they would support Frist if, as expected, he would attempt to change Senate Rule 22.
The Gang says it would like to review cases which Judge Alito has decided as well as listen to his answers in the Senate Judiciary Committee hearings. Something else is occurring, however, among the seven Democrats.
The left wing of the Democratic Party, with former Vermont Governor Howard P. Dean as party chairman, smells blood. The Left was angry that Democrats folded when Judge Roberts was appointed as our nation's 17th chief justice. The ranking minority member of the Judiciary Committee, Senator Leahy, as well as Wisconsin Democratic Senators Herb Kohl and Russell D. Feingold, both members of the Committee, ended up supporting Roberts.
When the Roberts nomination came to the Senate floor, 22 Democrats supported Roberts, as did all Republicans. Only 22 senators voted against Judge Roberts. The Lefties felt that the Roberts nomination should have been fought much harder. Bitter statements were issued by outside leaders of the Left. Leftists Ralph Neas and Nan Aaron warned senators that they had better not cave again.
The Roberts confirmation basically was over after the second day of hearings because Judge Roberts' intellectual brilliance so outshone that of the senators. Thus, many Democratic senators felt it would be counterproductive to vote against Roberts.
The Alito confirmation is different. Chief Justice Roberts was appointed to succeed the reliably conservative Chief Justice William H. Rehnquist. No change in the balance of the Court there. If anything, the Court may have moved ever slightly to the left, but in any event we shall see. Alito would replace the so-called swing vote on the Supreme Court, Sandra Day O'Connor.
Let us be candid. The real issue, which you will hear discussed in code at the hearings, is abortion. O'Connor's vote implemented Roe v. Wade. The Left fears that Alito might vote to overturn that ruling.
The Left didn't spend a dime to oppose Judge Roberts. It has between $30 million and $50 million (depending upon whom you believe) in the bank to oppose Judge Alito. Its target would be the seven Democrats in the Gang of 14 as well as some of the seven Republicans. If the Left could break up the Gang of 14, there would be a filibuster. If there were no filibuster, Alito would be on the Bench come January 20.
If there were a filibuster, Senator Frist would attempt to invoke the "Constitutional Option," as he calls it. The Left calls it the "Nuclear Option," since it would change the Senate rules in the middle of a Congress rather than at the beginning of a Congress. The change would be adopted by majority vote rather than two-thirds vote.
Frist currently does not appear to have the 50 votes required to adopt the "Constitutional Option." In the event he would have 50 Senate votes, Vice President Richard B. Cheney would break the tie. That would mean Frist could lose only five Republicans to change Rule 22.
Not a single Democrat supports the rules change. Presently, even with the return of DeWine and Graham to the fold, Frist has approximately 48 votes. He would need two more Republicans from among Lincoln D. Chafee (Rhode Island), Susan M. Collins (Maine), Mike DeWine (Ohio), Lindsey O. Graham (North Carolina), John S. McCain, III (Arizona), Olympia J. Snowe (Maine) and John W. Warner (Virginia).
Even former Majority Leader Trent Lott (Mississippi) has expressed reservations about changing the rules by raising a point of order rather than by following normal Senate procedure could pave the way for the legislative filibuster, long a target of Liberals, also to be changed by majority vote once the vice president or president pro tempore is Democratic.
The longer delay in voting on the confirmation of Judge Alito also will favor the Left as it did when Judge Robert H. Bork was nominated before the August congressional recess in 1987 and left hanging out to dry. The delay will afford the Left weeks to review Alito opinions of which they disapprove and to advertise those opinions on the radio, television and the Internet.
The Left also could investigate anti-Catholic rumors inasmuch as Alito would be the fifth Catholic on the High Court. The Senate would be long gone for the Thanksgiving and Christmas-New Year's recesses, leaving Alito hanging out to dry and without the defense of his Senate proponents.
The Miers nomination was a mistake in so many ways it is difficult to count them. The most important consequence of that mistake could be yet to come. If Alito were not defended for weeks and if the Left gets its act together, little by little it could gather enough support to invoke a filibuster against the Alito nomination. Then it would be up to Frist to deliver, which now would appear to be a very tall order for Frist to fulfill.
Paul M. Weyrich is Chairman and CEO of the Free Congress Foundation.
Editor's note:
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