My new Confirmation Tales post, titled “Filibuster Politics Shape Strategies on Alito Nomination,” explores the competing political strategies of Republicans and Democrats on George W. Bush’s nomination of Samuel Alito to the Supreme Court in 2005. An excerpt from the introduction:
The one weapon that Democrats could wield on their own to prevent Alito’s confirmation was the filibuster—preventing the 60 votes needed on the threshold motion for cloture on the nomination. Under the then-existing cloture rule, if at least 41 of the 45 members of the Democratic caucus voted against cloture (or simply didn’t vote), the Senate would not be able to proceed to a final vote on confirmation. But moderate Democrats in at-risk seats in red or purple states didn’t have the same appetite for the filibuster that their liberal colleagues in safe seats in blue states did.
The political strategy of the White House and Senate Republicans was directed from the outset at deterring or defeating a filibuster effort. Alito’s opponents meanwhile tried to figure out whether and how they could unify Democrats in support of a filibuster. In these competing efforts, the filibuster battles that had been fought since 2003 over Bush’s federal appellate nominees gave Alito’s supporters a huge advantage.
At the end of my post, I ponder whether Democrats failed to think strategically about how their blunderbuss filibusters against Bush’s appellate nominees might damage them on the far weightier matter of his Supreme Court nominees:
[W]ould there ever even have been an Alito nomination [if Democrats had been more selective in wielding the filibuster? Here’s one observation in hindsight that Democrats should find agonizing: If, say, Democrats hadn’t obstructed Bush’s May 2001 nomination of Texas supreme court justice Priscilla Richman Owen to the Fifth Circuit for more than four years, it seems very likely that Bush would have nominated her, rather than Harriet Miers, to the Supreme Court in early October 2005. With her decade of experience on the Texas supreme court and the Fifth Circuit, Owen would certainly not have triggered the conservative rebellion that Miers did. So it’s probably thanks to the Democrats’ excesses that we have instead had Alito on the Court.
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