Rick Hasen's web log
January 31, 2006
The Failed Alito Filibuster
I sometimes make predictions on this blog about future events, such as how the Supreme Court is likely to decide an election law issue. Sometimes these predictions are right and sometimes they are not. I have also been making predictions about the Supreme Court judicial nominations process since Justice O'Connor announced her intention to retire at the end of last term. For example, I correctly predicted the evening of Chief Justice Rehnquist's death that the President would renominate John Roberts for Rehnquist's seat and that the President would choose a candidate to the right of Harriet Miers after she withdrew her nomination.
But I also predicted that Justice Alito likely would not be confirmed, and of course this prediction has turned out to be incorrect. I wanted to think about why this prediction proved incorrect. Here is the core of my earlier argument:
- Judge Alito will not be confirmed, because Democrats will threaten to use the filibuster for a nominee they will strongly paint as anti-choice. Moderate Republicans, such as Olympia Snowe, won't vote to trigger the nuclear option, and Judge Alito will not get a vote on the floor of the Senate. My level of confidence in this prediction: not high.
It was relatively easy for Democrats to paint Justice Alito as opposed to abortion rights, especially after his 1985 job application came to light. Yet this issue did not have the salience I expected. In part, I suspect that there is just too much lag time between the appointment of a Supreme Court Justice and decisions on hot button issues like Roe. By the time the Court actually decides a case squarely presenting the question whether Roe should be overruled, President Bush may have finished his second term, and it is not clear that voters would then blame Senators for such a vote. Indeed, if Chief Justice Roberts moves incrementally in overturning cases like Roe (such as by watering down the "undue burden" test), the movement may seem imperceptible to the public.
The other key aspect of the failure of my prediction is the inability of Democrats to hold together and to be willing to use their political capital towards what many activists in the party saw as a core issue. Democrats could not afford to have many defectors if they were going to have 41 votes for a filibuster. There are still some relatively conservative Democratic Senators (or at least Senators from relatively conservative states who want to be reelected). In the end, Democratic leaders in the Senate apparently made the calculation that a filibuster was doomed to fail and decided not to pursue it.
What is hardest to explain (except as a publicity stunt) is the late effort at a filibuster from Sen. Kerry, literally "phoned in" from a ski resort in Switzerland. As Wonkette observed, "It reflects the same shrewd political judgment and unerring strategic insight that Senator Kerry displayed in running his 2004 presidential campaign."
Where does this leave Democrats? Thought the "Gang of 14" agreement has saved the Senate from the nuclear option, it has seriously weakened the Democrats, who apparently won't be able to block any competent Bush nominee to the Supreme Court (should another nomination open up). It may still be possible to block lower stakes judicial nominees, as is apparently happening with DC Circuit nominee Brett Kavanaugh.
In the end, I think my prediction failed because I overestimated the salience of the abortion issue and the strength and savvy of the Democratic party. Thanks to Sen. Kerry, Democrats have two losses rather than one in a 24-hour period.
Professor Hasen,
You're not the first person to express puzzlement by the failed last-second call for a filibuster of the Alito nomination. If I may, I suggest to you that the tactic employed by Kerry, Kennedy, Clinton, and others was utterly predictable.
Once it was clear that Alito was assured 60 votes for cloture, calling for a filibuster was a cost-free opportunity to satisfy the liberal fundraising base (MoveOn, PFAW, NOW, etc.). Kerry and others knew that their call for a filibuster would have no practical effect, and that the failure to call for a filibuster would itself have a negative effect: It would discourage the fundraising base from donating funds to the DSCC and to individual liberal senators' coffers.
The basic dynamics of the Democrat fundraising base and judicial-nomination filibusters is pretty straightforward:
(1) 60 or more votes for cloture: Liberal fundraising base is furious at moderate senators who "crossed the aisle." (Heck, check out DailyKos for evidence of that today.). Liberal senators say, "hey, we tried our best, so stick with us and we'll redouble our efforts next time."
(2) Less than 60 votes for cloture: Liberal fundraising base is furious at liberal senators who failed to successfully filibuster.
When, as today, we're in situation (1), liberal Democrats have nothing to lose and everything to gain by calling for a filibuster.
Adam
One reason the abortion issues, among others, lacked salience is that some opponents of Bush's nominees--particularly abortion rights activists--indiscriminately label them as dangerous crusaders whose first order of business would be to overturn Roe and make abortion illegal (which they depict as one in the same).
Eventually, though, most people figure out that things are considerably more nuanced than these critics suggest.
One can believe that Roe was poorly decided, and yet choose to uphold it on stare decisis grounds. One can believe in a right to abortion, without believing that the Constitution provides for that right. One can argue as a political job applicant that abortion is not a protected right, and yet as a judge fairly evaluate claims arising under Roe's progeny.
With many more media sources (and interactive media like the internet), people with an interest in judicial politics can easily research and evaluate the critics' claims.
During the Roberts and Alito debates, I think many people have come to realize that these issues are more nuanced than the critics have led them to believe, that certain left-leaning critics have significantly overreached, and that their contributions to the discussion often are more noise than signal.
The critics who claim that Roberts and/or Alito will overturn Roe, or that they approve of strip-searching children, or that they are racists, or that they tried to rule FMLA unconstitutional, are losing credibility with all but the far left policy makers who are beholden to them.
The critics' failures have fueled their desperation--and more shrill, dishonest attacks.
I wish instead that these failures would chasten them or lead them to renew their commitment to honest debate.
Posted by: Legal Eagle at January 31, 2006 01:01 PMhanks to Sen. Kerry, Democrats have two losses rather than one in a 24-hour period.
And you wanted him to be President?
Posted by: Robert Schwartz at January 31, 2006 01:43 PMIt's curious to think that if being accused of opposition to Roe fails to be a fatal blow, then abortion lacks salience. Rather, one would suppose it might have high salience, but that the consituents who care about it don't all agree that Roe should be defended. Hence high salience can coencide with little net effect.
That the rope isn't budging in a tug of war doesn't mean nobody is pulling, after all.
Posted by: Brett Bellmore at January 31, 2006 07:48 PMWhen you grade one of your prediction's confidence level as "not high", does that mean if it comes true you take not much credit? And what does it add to an explanation of an event such as a failed filibuster to write "The other key aspect of the failure of my prediction ...." Doess the failure of the prediction require its own explanation because of the highly competent mechanism your use to formulate a prediction? I believe you'll abandon your predicting...mark my words.
Posted by: Roger Lodger at February 1, 2006 07:17 AM