Another Home Run

{Whew} What a relief. Those of us who spent the weekend with held breath dreading the possibility that President Bush might name his wife, or Andy Card, or Alberto Gonzales, or the guy who digs postholes at his Crawford ranch to the Supreme Court seat being vacated by Justice Sandra Day O'Connor can rest easy with the announcement this morning that Third Circuit Court of Appeals Judge Samuel A. Alito will be the recipient of that honor.

Indeed, Judge Alito is, if possible, even more qualified to sit on the SCOTUS than Chief Justice Roberts. As the President mentioned in his introduction, "Judge Alito has served with distinction on that court for 15 years and now has more prior judicial experience than any Supreme Court nominee in more than 70 years." All of which makes the whole Harriet Miers debacle even more mystifying. Thank goodness it proved to be a "burp in the universe" aberration.

That universe has returned to normal, with the hard Left outraged, livid, sputtering, overmatched, and in an abject panic.

The usual suspects (Senators Reid, Schumer, Kennedy, People for the Soviet Socialist Way, Center for American Decline, just to name a few) are rigor mortically lashing out at the Alito pick. Kind of a "Ready! Fire! Aim!" dynamic that is the natural offshoot of not knowing what to do. This may be the first time in almost five years that the full reality of indefinite minority status has finally hit home with the Democrats.

Case in point. Here was the "inside line" this morning:

The Democrats are already mapping out their strategy. Several conference calls have already taken place this morning, coordinating surrogate and third-party campaigns against the nomination. "We're going to filibuster," a Democratic Senate Judiciary aide proclaimed on his ride into the office. "There is no doubt about that. We began talking about it on Friday when rumors first hit that it might be Alito or Luttig."

That strategy seems to have lasted all of four hours:

The energy up here on the Hill is amazing, and you can even sense among Democrats that they are unsure of what to do. Sure, the press releases have gone out and Senator Chuck Schumer has done his morning quota of TV appearances, but coming out of lunch meetings, a number of Democrats are worrying that they may have already overplayed their hand.

"We're waiting on some polling data," says one Senate Democratic leadership staffer, when approached about where her boss thought he might go the Alito front. "[Alito] looks a little more difficult to pin down than we thought yesterday." Even Senator Harry Reid is having some doubts about the strategy of setting up an early bogeyman. According to one DNC staffer, the office of Howard Dean was abuzz with gossip that Reid and Dean had spoken at about 10 am, with Reid asking Dean to tone down the rhetoric for a while.

Apparently, Dean declined.

"Apparently." {chuckle} I don't know what is more remarkable; that the Dems may have broken their own record for hand-overplaying, or that even a handful of them are recognizing it this quickly. Perhaps uncharacteristic Republican mettle made it harder to mistake the "filiborking" gambit for the banzai charge it is.

Case in point, Majority Leader Bill Frist on Tony Snow's radio program this morning:

I think the political posturing from the other side is absurd. I think it is disrespectful of the nominee, who wants America - and my colleagues, more importantly the latter. But once America sees who he is, they're going to stand back and say, "He is smart, he's intelligent, a man of integrity. A powerhouse, a powerhouse in the legal profession." So I look up on all these comments from my colleagues as premature and political posturing. And, you know, if they continue it along the way, I think they're going to pay a price....

[I]f they are going to prejudge the outcome, it's going to be a fight. And we are already for it....Obstructing judicial nominees should be a thing of the past. If the Democrats want to obstruct a nominee and not give us our constitutionalright of advice and consent, an up-or-down vote, we'll take it to the mat. If a filibuster comes back, I'm not going to hesitate to employ the constitutional option to get an up-or-down vote. [emphasis added]

Here was Senator Mike DeWine (RINO-OH), one of the McCain Mutineers:

"I think it's a good nomination. I think the judge is a solid judge, and I think he's going to be very well received....Our group of 14 will probably meet within the next day or two, just to kind of take a preliminary look. It's hard for me to believe, though, that what every one thinks of this nomination that this nomination rises to the level of what we call in this group of extraordinary circumstances, so it's just hard for me to believe that anyone would think this nomination is so far outside of the mainstream that it would qualify as filibuster material."

And here is another of the McCain Mutineers, "Lobotomy" Graham (via CQ):

Senator Lindsey Graham, Republican of South Carolina, fired back Sunday, saying that if the Democrats staged a filibuster against Judge Alito or Judge Luttig because of their conservatism, "the filibuster will not stand."

Mr. Graham's warning was significant because he played a crucial role earlier this year in helping block a Republican effort to change the Senate rules - known as the nuclear option - so that Democrats could not filibuster judicial nominees. His comments on Sunday indicated that this time, he would support that rule change; Democrats have threatened to retaliate with a battle that could snarl Senate business for months.

Two McCainiacs brings the minimum vote total for banning confirmation filibusters to an even fifty, meaning Vice President Cheney would break the tie. Could be that is what was making Fristy talk like he was packing a pair of grapefruits.

And that puts the Dems in a hellish dilemma. They can either try to flailingly bork Judge Alito but ultimately give way on allowing a final floor vote and lose the O'Connor seat, or they can try to filibuster him and lose that procedural weapon AND the O'Connor seat. And perhaps several more seats in next year's midterm elections, especially with the aforementioned "Samson" strategy.

Matt Franck at Bench Memos thinks the Dems will, in the end, run away to fight another day:

1. There will be no filibuster attempt. If Harry Reid doesn't quash the idea himself, he will be persuaded to do so by his own caucus.

2. A significant number of Democratic senators who announced themselves "very concerned" about Alito's presumptive views on "a woman's right to choose" and other matters will nevertheless vote for him in the end.

3. No more than one or two Republican senators will vote against him.

4. Arlen Specter will not be one of those opposed.

5. The final vote in favor of Alito will be more than 60 senators, possibly more than 65.

Cap'n Ed suggests for what the Donks will be saving the filibuster in this scenario:

I expect that the Democrats will get 30-35 votes in favor of a filibuster once Alito gets out of committee. If they do consider a filibuster, too many of them will realize that Stevens might get replaced during this term (he's 85 years old). They need that potential stop on Senate business to protect a genuinely liberal seat on the Court - and enough of them won't agree to tossing it aside before the 2006 elections, when they might narrow the gap in the Senate, in order to keep Alito off the bench. They also won't want to fight over obstructionism again during the next cycle, or the Democrats might well lose more Senate seats in the midterms.

Expect Alito to get confirmed, 65-35.

Both Franck and Morrissey offer sound, rational arguments whose plausibility, however, is dependent upon a group of people for whom rationality has been at best a random occurance.

Consequently, my natural instinct would be to predict a base-driven filibuster, a retaliatory rule change and Judge Alito's confirmation. Only thing is I thought the same thing about Chief Justice Roberts, and he won in a 78-22 blowout. But that gives me what accountants love and cannot do without - a numerical baseline.

If you figure that half of Dems voted for Roberts, but he was up for a constitutionalist seat, whereas Alito is up for a swing seat, arbitrarily reduce that half to a quarter. That would change the result to 67-33, still a win outside the filibuster range.

Figuring it from the opposite direction, if you simply take the total number of non-McCainiac Republicans, 48, and add the "Gang of 14," that produces a 62-38 margin, again outside of filibuster range.

Would the seven "moderate" Dems go along? Stanley Kurtz thinks so:

The downside is the possibility that a filibuster will hold up the larger legislative agenda. But I don’t think even moderate Republicans are politically endangered by this. They will break a filibuster and will not be punished. Moderate Democrats will be in more danger if they do filibuster. Again, I think this traps the Democrats between their own groups and the broader public.

Losing half a seat is better than losing one. And with Justice Kennedy becoming the sole swing vote between the originalist wing (Roberts-Scalia-Thomas-Alito) and the oligarchist wing (Stevens-Souter-Ginsburg-Breyer) all but guaranteeing that he'll become the latter group's de facto fifth member, the Left's fingernail grip on SCOTUS power would likely remain.

So call it a nasty but "conventional" fight, and a 62-38 win for Justice Alito.

Hoo-rah.