The Feld-Blog

So someone has had the guts to stand up, but is that really a good idea at this stage? Since I will go ahead and presume that you already knew that Kerry called for a filibuster, I will use this time to analyze two ideas – the political effectiveness of calling for a filibuster at this time and the rationale for democrats to oppose Alito’s nomination.

So how smart was it for Kerry to call for a filibuster now? Frist has already threatened to end the institution of the filibuster if democrats attempt to use it to oppose Alito. There is the distinct possibility, then, that pulling that trigger will come with dire political consequences which may actually change the entire political landscape of congress if not our entire federal government. Would trying to filibuster Alito have sufficiently positive effects to justify provoking Frists’ wrath? Probably not.

There are only 45 democrats in the Senate. Three of these have already pledged to vote for Alito’s confirmation – Senators Nelson, Johnson and Byrd. This brings potential supporters of a filibuster down to 42 (I am assuming whether or not any republicans will vote against Alito, none would support a filibuster). Democratic Senators Landrieu and Salazar have already stated their opposition to a filibuster bringing the number down to 40. 41 Senators are needed to sustain a filibuster and even if the Dems could rally 1 or two republicans (very unlikely to filibuster) Senator Feinstein has already said she is unsure about the appropriateness of a filibuster. Mr. Kerry – it seems you don’t really have the support. I applaud you for your efforts, but it seems for naught.

At this point the filibuster would likely only be a profound, but ineffectual statement of disapproval by about a third of the senate. This is a fairly impotent political move for the retribution it will likely invoke. If you read back through my posts you may see that I supported a filibuster at some point, but its too late in the game and too dangerous to try it now. Sorry guys – I think we lost this one.

But lets talk abstractly for a moment. There has been a lot of talk as to whether Senators can feel justified in opposing a candidate not on the basis of qualifications, but on the basis of issue stances. I say yes. The Senate is vested with the powers of “advice and consent” for many federal appointments (as well as treaties and other executive powers). Yet as elected legislators, they have a constitutional responsibility to control the legislative agenda of the United States federal government.

Whether or not you are willing to admit it the court affects the legislative agenda for the government as well as for the several states. People often complain of judicial activism and “legislating from the bench” but the fact remains that through the doctrine of judicial review – the power of the court to invalidate state and federal laws if they are unconstitutional – directly affects the legislative agenda. I know of very few people – scholars or citizens – who think judicial review is not a legitimate exercise of the courts power.

If the Supreme Court can affect legislation and Senators are charged with responsibility for advice and consent of these justices, it seems to me wholly justified for a Senator to oppose a judicial nominee based on ideology or issue stances. It is just as reasonable a justification as opposing a justice based on insufficient qualifications.

Now you might say that opposing a judicial nominee is different from opposing a piece of legislation with which a Senator disagrees, but let’s look closely. Often times a Member of Congress will oppose a bill, not because of what it says outright, but because of the likely effects it will have when put into practice. This maps surprisingly well to opposing a judicial nominee. Whether or not a nominee states outright how he or she will vote in certain cases, aggregating evidence from past decisions and position papers, it is often a simple task to deduce the likely effects of confirming that nominee just as it would be a simple task to surmise the unwritten but still very real effects of a piece of legislation.

So for all you Senators who are too afraid to oppose Alito solely because you disagree with his ideology, get it together and realize that you, as a Senator of the United States, are charged with a responsibility for the federal government’s legislative agenda. You cannot just let this sail by. For all you Senators who are hiding behind the excuse that you shouldn’t oppose Alito based on his ideology stop hiding and say what you really think. The voters have a right to know who and what they are voting for.