Filibuster Theory Unconvincing
As Leon points out, there are two possible scenarios if the Democrats take the filibuster route. One is that cloture is invoked by 60 senators, such that the constitutional option is never used. Under that scenario, the Democrats don’t risk losing the filibuster for future nominees. But what do Senate Democrats gain? Leon mentions only one possible advantage for Reid and company, namely:
“pressure on Lincoln Chafee, who is facing a very uphill battle in Rhode Island. Chafee is balancing on such a thin wire right now that a vote either way might very well doom his chances in the general election – a vote FOR cloture would be damaging with Rhode Island's overwhelmingly Democrat general election voters. If he votes no, that may well be the final straw that provokes GOP primary voters to kick him to the curb.”
He concludes that, therefore, “[Reid] can significantly tilt the playing field in at least one critical race in '06, basically for free.” But Leon seems to be ignoring the fact that Sen. Chafee faces the same dilemma on the final floor vote, even if there is no filibuster attempt. In fact, Chafee’s alleged bind is worse at that point, because he can’t rest a pro-Alito vote on the principle that nominees deserve an up-or-down vote, something many Democratic voters agree with. Chafee might even welcome a cloture vote as a chance to split the difference – that is, appeal to Rhode Island Republicans with a vote for closure and to the state’s Democrats with a final vote against Alito.
Under the other possible scenario, cloture fails and the constitutional option is successfully invoked (Leon concedes that the 50 votes necessary for success are in the bag). In that case, Leon sees several benefits for the Democrats:
1) “[Reid] buys at least a week of delay in the process.”
Big deal. The extra week will do the Democrats as much good as the current week-long delay, and will distract the party from battles they can win.
2) “[Reid] may be able to keep Alito off the court for the entire term.”
Again, big deal. Half a term without Alito is a drop in the bucket compared to the next 25 terms with Alito on the Court. That’s all the more true given that Roe v. Wade is safe for the remainder of this term.
3) “forcing a vote on the Constitutional Option would provide great fodder for Sherrod Brown and Bob Casey in October television ads.”
“Great” is an overstatement at best, especially given that the Alito battle will be over in plenty of time for its relevance to voters to fade by October. If I’m wrong about that, it just means that the Republican incumbents in these races, Sens. DeWine (D – OH) and Santorum (R – PA), can run against the obstructionist tactics of the filibustering minority party. In any case, great TV ads seem like a very high price to pay for losing the option to filibuster future nominees, Sen. Reid’s dreams of winning back the Senate in November notwithstanding.
In addition to exaggerating the “damage” to Republicans, Leon ignores the harm to the Democrats’ image if they filibuster Alito. Under either scenario, Senate Democrats look like obstructionists and in a much higher visibility setting than the battle over circuit court nominees. Also, under either scenario, the Democrats ultimately lose. Fighting to the last might make the Democratic Party faithful happy. However, huffing and puffing then striking out will not present an attractive image to swing voters. Since the Democrats can’t stop Alito, it makes much more sense for them to look somewhat bipartisan, as they did with Roberts.