Really though, the firestorm I am anticipating is not the predictable one which will be waged in public among the various interest groups and their constituents, but the more subtle one which will take place in the Senate Judiciary Committee and if approved there on the floor of the Senate. I figure it is time to dredge up last May's Memorandum of Understanding on Judicial Nominations which was brokered in the famous compromise of 14 to avoid the rancor of the nuclear option. The agreement is only binding upon the 7 Republicans and 7 Democrats who signed it, and is not as broad as some would have us believe. Specifically the Democrats agreed:
Signatories will exercise their responsibilities under the Advice and Consent Clause of the United States Constitution in good faith. Nominees should only be filibustered under extraordinary circumstances, and each signatory must use his or her own discretion and judgment in determining whether such circumstances exist.A frequent misreading of this document is that since the earlier section of the document exempted the use of the filibuster by the signatories against non-Supreme nominees Janice Rogers Brown, William Pryor, and Priscilla Owen, that there is an implicit acknowledgement that their nominations do not constitute extraordinary circumstances. Such a reading would equally imply that the Republican signatories were acknowledging that William Myers and Henry Saad did exemplify extraordinary circumstances which the Democrats would have a right to filibuster. No, Part I of the compromise, was just that - a compromise to avoid the protraction of debate on the then current set of judicial nominees, so that business could proceed and the threat of the "nuclear option" could be deferred at the least.
Nuclear Option: dispensing with the Senate rule that 60% of the Senate is required to stop discussion (invoke cloture) and force a vote on a nominee.
It does mean that any of the (Democratic) signatories who do take part in a filibuster are on the hook to defend their perception of a candidate's nomination as an extraordinary circumstance, as any of the (Republican) signatories would be on the hook to claim otherwise before ceding to any Republican attempt to invoke the nuclear option. These Senators actually know each other well enough to have a pretty good idea if the others are being disingenuous, but I really think the Democrats have the upper hand here. If one or several make a sincere case that a nomination is extraordinary - and note that the memorandum does not exclude ideological considerations - then any of these more moderate Republican signatories will be hard pressed to cry foul. Further, the weakened Presidency and embattled Republican party has already spent its political capital for this kind of fight. Now it's true that the Republicans, if they are otherwise united, only need to peel off two or three of their signatory fellows to reverse the cloture rule, but it's an even more risky game for them given the higher likelihood that they will become the minority party in 2006 or 2008.
Alito may not be the firebreather that Bork was, nor the lightweight that Miers was perceived to be, but he has a long record which won't play well among civil libertarians, consumer advocates, or the suburban social moderates. Roberts and Alito may not be that different, but Roberts record was shorter and afforded him better play under questioning. His confirmation without any recorded cloture vote - a voice vote I'm guessing - with only 22 Nays in the final tally also establishes that the Democrats are playing nice, so far.
My sense is that the fight is upon us, and with the weakening of public support for Bush and the GOP, right now I'm betting against his confirmation. He may not even get out of committee if Specter decides that it's time to stand up to the right wing of his party.