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Reviving the Dems

Eight months ago, the Dems agreed to filibuster future Supreme Court nominees only in 'extraordinary circumstances' -- like right now.
We can pinpoint the exact day the Democratic Party may have signed its own death sentence: May 24, 2005.
Will January 30, 2006 be they day they signed their own letter of clemency?

Let me explain.

During George W. Bush's first term, Democrats managed to prevent a vote on the confirmation of a number of the president's most right-wing judicial nominees (although not as many as the 70 nominees blocked by the Republican minority during the Clinton years).

In November 2004, the Republicans increased their Senate majority. Bush threw down the gauntlet by renominating to the federal bench 10 of his most radical judicial nominees.

The Democrats threatened to filibuster. The Republicans threatened to change the provision of Senate Rule XXII that requires a two-thirds majority vote to close off debate and replace it with a simple majority rule. Trent Lott dubbed the maneuver the "nuclear option."

Obviously a vote to end a filibuster could itself be filibustered. But the Republicans insisted they had found a way around this obstacle. They would change the rules via a simple parliamentary maneuver. It was unclear whether such a maneuver was feasible. But here's how the Republicans envisioned it working.

Republicans would assert that further debate on a specific judicial nominee is not in order. Under Senate rules, such points of order are not usually debatable. The presiding officer of the Senate, either Dick Cheney or Sen. Ted Stevens would rule in favor of the Republicans. The Democrats would appeal the ruling. The Republicans would move to table that appeal. That motion also would be nondebatable and subject to a simple majority vote. When passed, any further debate on that nominee would be cut off.

Some legal observers wondered whether the parliamentary strategy was legal. As Jeffrey Toobin noted in The New Yorker, a parliamentary vote to call the question and end debate requires a two-thirds majority under "Robert's Rules of Order." Thus resorting to a parliamentary maneuver might result in an actual increase in the number of votes needed to cut off debate.

In any event, a genuine constitutional crisis loomed. At first, the Democrats stood firm. Senate Minority Leader Harry Reid warned that if Majority Leader Bill Frist exercised the nuclear option, the Democrats would use other parliamentary means to bring all business in the Senate to a halt. There were many available.

And so things stood on May 24.

That day seven Democrats and seven Republicans worked out an agreement. Senate Minority Leader Harry Reid immediately called the deal "really good news." He announced, "The integrity of the Supreme Court has been protected from the undue influence of the vocal, radical right wing. ... We have sent President George Bush, Vice President Dick Cheney and the radical arm of the Republican base an undeniable message: Abuses of power will not be tolerated. ..."

Eight months later, Reid's boast seems little short of hallucinatory. The Democrats had agreed not to filibuster Bush's then-pending right-wing judicial nominees. They reserved the right to filibuster future nominees only in "extraordinary circumstances." The Republicans had agreed not to exercise the nuclear option. They reserved the right to do so in the future.

At the time, an anonymous Republican politico offered a more accurate assessment of what his party had accomplished. "We have set the stage for President Bush to nominate a 51-vote Supreme Court justice, as opposed to a 60-vote Supreme Court justice."

Six months later, President Bush nominated John Roberts for chief justice of the United States. Roberts had distinguished himself on the federal bench by supporting the state's taking someone off the streets and holding that person incommunicado, without charges, for an indefinite period. At that historical moment, when the prospect of an all-powerful state was being openly discussed on the front pages of the nation's newspapers and magazines, the Democratic Party decided that it would not filibuster the nomination. Apparently, tyranny did not rise to the level of an "extraordinary circumstance."

Two months later, in his first case, Chief Justice Roberts sided with Scalia and Thomas in favor of the right of the state to prevent terminally ill Oregon residents from peacefully ending a life wracked with pain. This, even though the citizens of Oregon had voted overwhelmingly in favor of giving themselves this authority.

And now comes Samuel Alito. Alito's allegiance to state power is even more pronounced than Roberts'. Strip-searching teenage girls. Indefinite detention. Wholesale wiretapping. He certainly would support the state's right to arrest a pregnant woman in order to ensure that she carries her fertilized egg to term.

But again, astonishingly, the Democratic Party decided that Alito's nomination did not rise to the level of an extraordinary circumstance.

You know the Democratic Party has given up the fight when the New York Times runs an editorial, as it did five days before the vote on Alito's nomination, entitled, "Senators in Need of a Spine."

"It is hard to imagine a moment when it would be more appropriate for senators to fight for a principle," the Times declared. "Even a losing battle would draw the public's attention to the import of this nomination."

The editorial continued: "A filibuster is a radical tool. It's easy to see why Democrats are frightened of it. But from our perspective, there are some things far more frightening. One of them is Samuel Alito on the Supreme Court."

Finally, three days before the Alito vote, Massachusetts senators Edward Kennedy and John Kerry said they would filibuster his nomination. The vast majority of the party continued to sit on the sidelines. Joe Biden, Chuck Schumer and Barack Obama have indicated that they will reluctantly vote for a filibuster; not much inspiration for the remaining Democrats who haven't yet made their final decision.

About 90 percent of the Democratic Party are likely to vote to oppose Alito. Some will do so in the most colorful language. But as a minority, votes count only when they are votes on cutting off a filibuster.

Indeed, engaging in a filibuster is an absolute minimum requirement for political viability among Senate Democrats. Filibusters can be broken. It's time to threaten, as Sen. Reid did before the Democrats' Day of Infamy, to use other parliamentary maneuvers to close down the Senate if the Republicans force a vote on Alito.

But the day after senators Kennedy and Kerry announced their intention to filibuster, Sen. Reid meekly (dare I say cowardly) insisted, "We've debated this long enough."

Try this intellectual exercise. A Democratic president with a Democratic Senate majority nominates Ralph Nader to the Supreme Court. Do you think that Republicans would make a deal? Would they refrain from a filibuster? On the contrary, if the Democratic Party pushed it to a simple majority vote, I would expect the Republican Party to engage in nothing less than armed struggle.

I'm not urging the Democratic Party to take up arms. I am urging it to recall the firmness and spine it demonstrated on May 23, 2005. And to do everything possible to stop Samuel Alito from becoming the deciding vote on fundamental issues of liberty and democracy.
David Morris is co-founder and vice president of the Institute for Local Self Reliance in Minneapolis, Minn., and director of its New Rules project.
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