WASHINGTON (BP)–Supreme Court nominee Samuel Alito’s confirmation seemed all but certain Jan. 26, as two more Democrats announced their support for him, apparently giving Republicans the 60 votes required to overcome a filibuster attempt supported by Sen. John Kerry.
CNN reported that Kerry, D.-Mass., is urging his Democratic colleagues to filibuster Alito, whose nomination has energized conservatives but drawn the fury of liberal interest groups. Kerry is overseas in Switzerland attending the World Economic Forum. Sen. Edward Kennedy, D.-Mass., supports a filibuster, CNN said.
But enough Democrats have announced their support for Alito — or their opposition to a filibuster — that Kerry’s threat appears to be futile.
Sens. Tim Johnson (S.D.) and Robert Byrd (W.Va.) — two Democrats from conservative states — announced during floor debate that they would vote for Alito. Including Democrat Sen. Ben Nelson of Nebraska, three Democrats now have said they support President Bush’s nominee.
Senate Majority Leader Bill Frist, R.-Tenn., has scheduled a “cloture” vote for Monday at 4:30 p.m. ET and an up-or-down vote on Alito for Tuesday at 11 a.m. ET. Cloture is a Senate term that refers to a vote to limit debate and proceed to an up-or-down vote. In essence, a vote against cloture is a filibuster.
“I refuse simply to toe the party line when it comes to Supreme Court justices, and I make up my mind after careful contemplation,” Byrd said. “… I am a registered Democrat — everyone knows that. But when it comes to judges, I hail from a conservative state, and like a majority of my constituents, I prefer conservative judges. I’ve been saying that for years and years. That is, [I prefer] judges who do not try to make the law.”
Sen. Arlen Specter, R.-Pa., said behind-the-scenes counts show that Alito has the 60 votes to overcome a filibuster. Two Democrats — Sen. Ken Salazar of Colorado and Sen. Mary Landrieu of Louisiana — have said they would oppose any filibuster attempt. Salazar, though, said he would vote against Alito, while Landrieu said she is still examining Alito’s record.
Republicans have 55 seats. Assuming that all 55 vote against a filibuster, and that Democrats Johnson, Byrd, Nelson, Salazar and Landrieu do the same, Republicans would have the 60 votes to block any filibuster attempt.
“Because we have such a full plate of pressing issues before Congress, a filibuster at this time would be, in my view, very counterproductive,” Landrieu said in a statement. “… We simply cannot afford to bring the Senate to a halt at a time when we need its action the most. If called to vote for cloture on Judge Alito’s nomination, I will vote yes.”
An unofficial vote tally by C-SPAN showed 54 senators supporting Alito’s nomination and 31 opposing it. That is more than enough for confirmation, although it could make for one of the closest Supreme Court confirmation votes in history. But C-SPAN’s count didn’t include Sen. Susan Collins, R.-Maine, who late Thursday announced her support for Alito. That would increase the number of supporters to 55. Three Republicans — Lincoln Chafee (R.I.), Olympia Snowe (Maine) and Ted Stevens (Alaska) — have not announced how they would vote.
Johnson said Alito would not have been his choice for the Supreme Court and that he had some concerns about the jurist, but that presidents deserve “due deference” on their nominees.
“Judge Alito deserves the same deference that Republican senators accorded the Supreme Court nominees of President Clinton. I am mindful that [Supreme Court] Justice [Ruth Bader] Ginsburg, a former counsel to the ACLU, was confirmed with 96 Senate votes in her favor,” Johnson said.
“I do not believe that simple political ideology ought to be a deciding factor so long as the nominee’s views are not significantly outside the mainstream of American legal thinking. I also believe that the judicial nomination and confirmation process in recent years has become overly politicized to the detriment of the rule of law.”
Alito’s confirmation would be a monumental victory for Christian conservatives, who have worked for years to reshape the nation’s highest court. Paired with Chief Justice John Roberts, Alito’s confirmation would give Bush two justices on the Supreme Court in less than a year. Although it is not yet known how either Alito or Roberts will vote on a handful of significant issues, legal observers believe it could make a difference on abortion and religious freedom cases. Alito would replace Sandra Day O’Connor, who in recent years has provided key votes in 5-4 rulings against Ten Commandments displays and bans on partial-birth abortion.
Currently, the Supreme Court is considering whether to take up a case relating to the federal ban on partial-birth abortion — a gruesome procedure in which an abortion doctor partially delivers a late-term baby feet first. With the baby’s head in the birth canal, the doctor then punctures the skull and suctions out the brain.
But if Alito is confirmed, the Supreme Court still would not have the votes to overturn the Roe v. Wade decision that legalized abortion nationwide. Even without O’Connor, five members are on record as affirming Roe.
Speaking Jan. 25, Sen. Orrin Hatch, R.-Utah, said the battle over Alito and the judiciary is a fight “over whether we should stick with the system America’s founders established.”
“Some want to change that system because, frankly, it does not give them everything they want,” Hatch said. “Self-government, after all, can be a little messy and sometimes very frustrating. Letting the people and their elected representatives make the law and define the culture means that, on any given day, certain political interests win and others lose.
“Some who lose in the political process pick themselves up and try again another day. Others leave the political process behind and go to the courts, trying to persuade judges to impose upon the American people policies and priorities the people would not choose for themselves.”
The Supreme Court, Hatch said, “does not exist to run the country, right all wrongs and usher in peace and domestic tranquility. The judiciary is part of our system of limited government. It is not a system unto itself.”