We Aren’t Going To Stop Talking: Oh Yes You Are: You Can’t Make Me

Some words to think about this weekend.

Senators are jockeying for attention in the news over the upcoming vote on Supreme Court nominee Judge Samuel Alito. Many Liberals and Progressives feel that the Democrats have not done enough to stop Alito from being confirmed. Calls are flooding their offices to filibuster the vote.

On every talk show and newscast, the words ‘cloture’ ‘filibuster’ and ‘nuclear option’ are tossed about freely. I thought I would take a minute and review what they mean.
Most of us learned about filibuster in elementary school. That allows Senators to continue the debate for as ‘long as it takes’ before a vote can be taken. I remember once hearing that a Senator stood and read a cookbook for hours during a long filibuster.

Another example would be the 57-day filibuster against the Civil Rights act of 1964. Finally, there were enough votes for cloture in the Senate. Enough Senators voted ‘yes’ for cloture, the debate was ended and vote taken to pass the Civil Rights legislation.
Alito’s supporters (mostly Republicans) are trying to vote for ’cloture’ on Monday.
Probably one of the most dramatic in recent times occured in 1988. The Republicans (minority party then) were filibustering the Campaign Finance Reform Bill. Senate Majority Leader Robert Byrd

responded by requiring non-stop Senate sessions. Republicans boycotted the Senate. Byrd then invoked an obscure rule that allowed him to have absent members arrested and brought to the Senate floor. Senator Bob Packwood was carried onto the floor around one a.m. and was injured in the tussle. Byrd’s strategy wasn’t enough. After eight cloture votes failed, he pulled the reform bill from the agenda. Since 1961 fewer than half of all cloture votes have succeeded.

If you went to school around the same time that I did, you were taught that ‘cloture’ could not be invoked unless 2/3 of the Senate voted yes. That rule changed thirty years ago. In 1975, Senate reduced the number of votes needed to invoke cloture to 3/5 (60 votes).

In order to have a vote of sixty, some Democratic Senators will have to choose ‘yes’ for cloture. That is why every Democratic Senator's vote is so crucial right now. There have already been three Democratic Senators who have stated they will vote yes. There is some hope that a few Republicans will vote against it--siding with the Democrats.

The 'nuclear option' is a provision that the Republican majority has been dangling for several years. They are threatening to change the Senate Rules so that filibuster is prohibited in cases of Judicial Nominations. Since they are the majority party, there is a decent chance that they could succeed. That would give the weaker minority party even less power in fighting against judges that they dislike. However, it works both ways. If the Democrats regain the majority in the Senate--the Republicans would then have to live with that same rule.

Why are some Democrats hesitating? Some believe that their constituents don't want them to block Alito. Some (like the Louisiana Senators) are desperate for Republican money for their States and don't want to make enemies.

Any Senators who filibuster are also up against: 1) complaints that they are wasting taxpayer time and money on a lost cause. 2) Accusations of being obstructionist and holding up other government business. 3) Accusations of playing politics.
These 'hold water' a little because the Republicans have enough votes to confirm Alito.

The goal of this filibuster is to buy time and hope some Republicans change their mind. There is some basis for this---if the NSA/FISA scandal hadn't broke in December, and if Alito hadn't supported and written so much that supports the idea of a stronger more powerful executive branch--- there may not have been enough opposition to Alito for the Democrats to have gotten this far. Remember they delayed the debate for a week after the hearings. Now they are hoping to delay the vote.

I also think that there have been so many accusations of Democrats not doing their job as opposition party that they feel they have to take action. The strong sentiment among many Americans is that it is better for them to ‘go down fighting’ than to let the Republicans roll right over their objections.

With new scandals popping up every day, who knows, they might have a chance.

Martha Cries & Starry Desighs--A Memoir of the Alito Hearings

I watched the Congressional hearings on Judge Samuel Alito’s nomination for the Supreme Court with great interest. To me, this was probably the most important nomination in the past twenty years. Not only because he was selected after Harriet Meirs wasn’t ‘conservative enough’ for the Republican base; but because word of his record was rather alarming.
Alito had been coached at the White House prior to the hearings. In a situation where one of the major concerns about him was his writings on executive power, this was a bit disturbing. The man I watched answered the questions day after day was smooth, unflappable and very much a nerd. I normally like nerds, since I consider myself one too. He came across as a decent guy, very bookish and very into discussing the intellectual aspects of the law. Although his answers were carefully worded to essentially say very little, he did not seem as polished and cocky as so many members of the Bush administration present themselves.

However, when the hearings were over I felt that I could not support this man for the Supreme Court. I was left with a gut feeling, the same one I had after the Clarence Thomas hearings, that this man as associate justice would be bad for the nation. Especially because Alito is a relatively young guy and may be sitting on the court for the next thirty or forty years. And that I was right about Thomas, who is now widely considered to be one of the most incompetent justices ever seated on the court.
Many progressives have filled the news with concerns that Alito may be instrumental in overturning Roe vs. Wade. Two questions were repeated to him by Senators, although presented in a variety of formats. Each time Alito either a) implied that his writings against Roe vs. Wade does not necessarily reflect his stance when ruling in court, or b) referred to his respect for the use of a stare decisis (pronounced ‘starry desighsiss).

In fact, a stare decisis (Latin for ‘entitled to respect’) was the theme of the hearings. It would probably be a great college drinking game for someone to watch the hearings and drink every time a Senator or the nominee used the term. In essence it refers to the concept that judges examine precedents in previous court rulings when making their decisions. The implication was that since Roe vs. Wade has been established law for over thirty years, and there have been subsequent rulings to uphold it, he would consider that when any similar cases came before him. Putting aside the vague applications of stare decisis, the point so many seemed to miss is that the Supreme Court Justices tend to publish decisions that create precedent. Of course they examine past cases, but if they agree to hear a case it is usually because there isn’t enough precedent to make a clear decision. So Alito will be making policy more than following it.

Alito’s answers gave no true indication of how he would rule on the issues facing us today. He declined to directly answer questions on issues, citing that it might prejudice future cases that came before him. There is a mountain of arguments on both sides over this issue. In essence, people already know how he might rule by examining his past decisions and writings of dissent.

I believe that it is important to know the beliefs and ideology of a person holding this lifetime office. This represents the third branch of government, and just as we examine the people of the executive and legislative branches when they ask for office, we need to try and look into the heart and mind of those who wish to sit in the judicial.

There is no doubt that this is also a political job. It always has been and nothing will change that. Alito supporters piously spouting in the news that the Democrats are turning this sacred nomination into ‘politics’ is laughable if you know anything about the history of judicial nominations. As usual they are relying on the lack of memory by members of the media and the general population when they pull these stunts.

I am not worried about Alito being confirmed based on Roe vs. Wade. Although I think it is an important issue, one that admittedly often determines who I vote for; I believe that there is not going to be some dramatic overturning of that case. Instead decisions may chip away at the right to choice. I don’t like the idea, but that takes longer to achieve and hopefully can be fought another day. First we have to maintain our abilities and rights to fight such issues.

If you follow the old adage ‘actions speak louder than words’ Alito’s record of supporting a more powerful executive branch is much more frightening. Take Bush’s alarming current claim of ‘unlimited executive power’ during a time of war. Apply that allegation to the ‘War on Terror’—which by Bush’s own words may last at least thirty years—and it’s chilling. Add a vote on the Supreme Court that may tip the balance in favor of Bush’s ‘Unitary Executive’ belief—and goodbye Democracy as we have known it.

There are many well-written articles that have cited Alito’s written statements and previous rulings. If you are interested, here are some links that will offer additional details (clickable access at the bottom of this article).
Questionnaire completed by Alito for Senate Judiciary Committee: http://www.washingtonpost.com/wp-srv/nation/documents/AlitoQuestionnaire.pdf
Washington Post chart of Alito’s Record (Which Side Was He On?)http://www.washingtonpost.com/wp-dyn/content/custom/2005/12/30/CU2005123001137.html
Jurist Law transcripts of hearingsDay One: http://jurist.law.pitt.edu/alitoday1.phpDay Two: http://jurist.law.pitt.edu/alitoday2.phpDay Three: http://jurist.law.pitt.edu/alitoday3.phpDay Four: http://jurist.law.pitt.edu/alitoday4.php

I plan to contact my own Senators—Levin and Stabenow—to ask them to filibuster this nomination. There is a drumbeat in the media that a Democratic filibuster is pointless. I don’t agree. First of all, the Republicans need Democratic votes to confirm. There is also a hope that some Republicans will behave as Patriots instead of politicians and speak out against this confirmation. Most of all, the Democrats have to start showing some spine. If they continue to do nothing because ‘it’s hopeless’ it just encourages this atmosphere of tyranny now prevalent in D. C.

Before I close I must touch on what has become the ‘file photo’ for the hearings. That is Mrs. Alito dabbing tears before she leaves for an hour to recover from those ‘mean Democrats’. Apparently most of the mainstream media is either ignorant to the circumstances of her tears, or deliberately stretching the truth. In fact, Mrs. Alito started crying when her husband was being questioned by a Republican Senator Lindsay Graham. As someone who cries easily, I am empathetic that the long days of sitting there behind her husband had to be exhausting. I am sure she could give us a long list of Sam’s faults after that many years of marriage. However, we all close ranks when someone we love are being criticized by outsiders. Because she broke down while a Republican (Graham) was questioning I am sure it was from more of an accumulated stress than a specific incident.

However there is another theory. In fact, it supported my own thought the minute the hearings began that day. I was delighted to hear I wasn’t alone, when Ed Hermes commented that night on “The Daily Show”:

“There was also the emotionally-charged saga of Mrs. Alito. I myself will never forget the sight of her crying as she listened to Sen. Lindsey Graham defend her husband from Democratic attacks on his character. It was a sign of how brutal and hard-hitting these hearings can be, especially for a woman who, due to a tragic laundry accident, was forced to show up wearing her grandmother's couch." --"Daily Show" correspondent Ed Helms