Senate Gang Could Give Alito a Pass
The voting is still two months off, but partisans hoping for a battle royal over judicial nominations are probably going to have to wait even longer after the much-vaunted "Gang of 14" centrist senators signaled that Judge Samuel Alito, with his 15 years of service on the federal bench, may not meet the group's criteria for a filibuster. In May, the bipartisan gang forged an alliance to avoid--or at least postpone--a procedural endgame over judicial filibusters. The infamous "nuclear option" would have Republicans changing Senate rules to allow a pure majority vote on judges--and Democrats vowing to logjam the session.
The compromise preserved the hallowed Senate tradition of extended debate and raised the bar for filibustering to "extraordinary circumstances," a somewhat ambiguous term whose definition is left up to the individual members. Now, this informal collection of legislators holds considerable sway over the fate of Alito's nomination, and, as the fight over the judiciary reaches a zenith, it remains to be seen if their pact can remain intact.
The gang will caucus again in a few weeks, after each of the members has met the nominee, but there are already indications that the phalanx of moderate legislators has lost some of its solidarity. The day after the nomination was announced, Ohio Republican Mike DeWine, one of the first senators to meet privately with Alito, announced that he would support deployment of the nuclear option if Democrats attempted to block a candidate he calls "clearly within the mainstream of conservative thought." Republican Lindsey Graham of South Carolina also says he will vote for a rules change, should the need arise.
Counting the votes. The GOP holds 55 Senate seats, five short of the supermajority needed to break a filibuster under the chamber's current rules. Democrats can count on 45 votes and only need 40 legislators to maintain a filibuster. Republicans need support from only two of the Gang of 14 to thwart a Democratic filibuster, with Vice President Dick Cheney casting a potential tie-breaking vote.
Others in the group, a combination of centrists, including Maine's Olympia Snowe and Susan Collins, and traditionalists like Robert Byrd of West Virginia, say they'll reserve judgment until they've had a chance to examine Alito's record at hearings scheduled for the second week in January. The gang's Democrats have yet to mention the "F" word and insist that the compromise still stands. "Our agreement to prevent the nuclear option is still alive and well, and if anyone feels that there are extraordinary circumstances with this nominee, then they will report back to the group before proceeding," says Connecticut Democrat Joe Lieberman.
In the end, Alito's opponents face the prospect of either uniting 40 Democrats for a filibuster and trying to defeat a rules change, or amassing the 51 votes to defeat the nominee outright. "Just because his nomination might not meet the threshold of extraordinary circumstances doesn't guarantee that I will vote to confirm him," says Collins. "We will have to examine his record and wait and see."
This story appears in the November 14, 2005 print edition of U.S. News & World Report.
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