On Capitol Hill this morning, Senate Republicans are dealing with a dilemma–the kind of dilemma that troubles only those who have already gotten what they wanted.
The question is: Just when, exactly, will Supreme Court nominee Samuel Alito be confirmed? Alito was approved by the Senate Judiciary Committee on a straight party-line vote yesterday, and Majority Leader Bill Frist has scheduled debate in the full Senate to begin today. But there is word that Democrats plan to stage a talk-a-thon on the nomination. It appears that each of the Senate’s 45 Democrats will use the Senate’s tradition of unlimited debate to talk for quite a while on Alito–a kind of non-filibuster filibuster that could make for several days of talking. At some point, Frist will have to file for cloture, that is, to begin the process of cutting off debate so that an up-or-down confirmation vote can be held.
But according to Senate rules, once Frist files for cloture, he has to wait three days before holding a vote. And if he wants the Senate to confirm Alito before the president’s State of the Union address next Tuesday, he will have to file for cloture soon–before Democrats have actually had a chance to talk for very long. On the other hand, if he waits to file for cloture until it is clear that Democrats are just talking for the sake of talking, then there can’t be a vote until after the State of the Union address.
Some Republican senators want to go ahead right now. Would an early filing for cloture betray a hint of bad faith on the GOP’s part, a desire to shut down debate too soon? They don’t worry about that because they believe Democrats have already shown reams of bad faith in the Alito matter. Other Republicans think it is important to allow the Democrats time to talk. It’s not that big a deal, they believe, since Republicans are going to win anyway.
What’s not entirely clear is why it is so important to some Republicans–and the White House–that Alito be confirmed by the State of the Union. Yes, the televised speech always includes a shot of the Supreme Court justices–some of them, at least–filing into the House chamber, and White House aides would very much like to see Alito in that group. But pictures aside, is there any reason that Alito has to be confirmed before Tuesday as opposed to Wednesday or Thursday? Not really.
That is why one of the Republicans who is apparently not worrying much about the issue is Bill Frist himself. A source who is knowledgeable about the issue says Frist has “never set the State of the Union as a deadline.” Doing so would be “artificial” and lead to “agonizing questions” of timing. Therefore, the source continues, those in the leadership “don’t care much about the State of the Union when it comes to scheduling any procedural options.”
Still, Frist is keeping his options open, and the source reminds everyone that the majority leader has said he’ll do whatever it takes to get an up-or-down vote on Alito. Whatever the timing, that is certainly going to happen, and Republicans are going to win.
The bigger issue in the Alito nomination is the arrival of the party-line vote in the Supreme Court confirmation process. Every Democrat on the Judiciary Committee voted against Alito, and right now there is only one Democrat, Nebraska’s Ben Nelson, who has said he will vote to confirm Alito on the Senate floor. After the committee vote yesterday, chairman Arlen Specter told reporters that such partisan divisions in Supreme Court nominations are “not a healthy thing for the country” because they leave the “overwhelming suggestion that it is a political decision.”
At the committee meeting, Arizona Republican Sen. Jon Kyl said the party-line vote was bad not just for the Alito nomination, but for the future. “I fear a very bad precedent is being set today, a precedent that a unanimous minority will oppose a nominee on political grounds, not because the nominee is in any way unqualified,” Kyl said. In the 1990s, Kyl continued, Republicans voted overwhelmingly for Bill Clinton’s two Supreme Court nominees, Ruth Bader Ginsburg and Stephen Breyer. Now, a new standard was being set. “It is simply unrealistic to think that one party will put itself at a disadvantage by eschewing political considerations while the other party almost unanimously applies such considerations,” Kyl said. “So I say to my Democratic friends, think carefully about what is being done today. Its impact will be felt well beyond this particular nominee.”
It was a powerful statement, one that appeared to touch California Democratic Sen. Dianne Feinstein, who used her allotted time to rebut Kyl. Or try to rebut Kyl; in the end, her answer was: That was then, and this is now. “It’s a very different day and time than when Justice Ginsburg and Justice Breyer were before this [committee],” Feinstein said. “There was not the polarization within America that is there today and not the defined move to take this court in a singular direction.”
Some political observers might not remember the national unity that Feinstein recalls under Bill Clinton, who, when he nominated Ginsburg and Breyer, had been elected with 43 percent of the vote. But Feinstein appeared to be speaking from the heart. “There comes a time when you just have to stand up,” she said in closing, “particularly when you know the majority of people think as you do.”
Other Democrats reached beyond the Clinton years to find a lesson in history. Vermont Sen. Patrick Leahy declared that, “No president should be allowed to pack the courts, especially the Supreme Court. An overwhelmingly Democratic-controlled Senate stood up to the most popular Democrat ever elected president, Franklin Roosevelt, and we Democrats protected the independence of the Supreme Court by saying that even someone as popular as Franklin Roosevelt could not pack the Supreme Court. Well, even today, with a Republican Senate, I would say that no president should be allow to pack the courts, and especially the Supreme Court when nominees are selected to enshrine presidential claims of government powers.”
It was a powerful statement, but one that left a number of listeners shaking their heads. In the 1937 court-packing affair, Roosevelt did not use a Supreme Court vacancy to nominate a justice of his ideological persuasion. Instead, he wanted to nominate additional members to the Court so that he could get the decisions he wanted. How that relates to the Alito nomination is not clear.
Whatever. By the end of the day, Democrats were reduced to talking, and talking, and talking. And Republicans were worrying not about whether Alito would win, but about how much they should allow Democrats to talk. State of the Union or no State of the Union, that’s a situation that should make the GOP very, very happy.
–Byron York, NR’s White House correspondent, is the author of The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President–and Why They’ll Try Even Harder Next Time.