Did 41 Stand Up Against Alito? No.
It wasn't even close. Seventy-two senators voted to invoke cloture, and thus sealed the fate of President Bush's nominee Samuel Alito: a lifetime appointment to the Supreme Court.
Alito will like be confirmed by a similar margin in Tuesday's confirmation vote, where only a simple majority of 51 senators is necessary.
Independent Jim Jeffords of Vermont and Republican Lincoln Chafee of Rhode Island have stated they intend to vote against Alito on Tuesday. So far, four Democratic senators have publicly stated they will vote to confirm Alito: Robert C. Byrd of West Virginia, Tim Johnson of South Dakota, Ben Nelson of Nebraska and Kent Conrad of North Dakota.
It was a surprise to many that only 25 Senators voted against cloture. As of Sunday, Senate Minority Whip Dick Durbin told the press he had 37 of the 41 votes necessary to support a filibuster of Supreme Court nominee Samuel Alito.
All eight Democrats on the Senate Judiciary Committee were in unison in their voting against Alito before his nomination made it to the floor. Because Alito has passed committee -- on a strict party-line, 10-8 vote -- the filibuster was the only mechanism that would have prevented his confirmation. Filibusters permit senators to block or hold a measure or nominee whether or not they are in a majority. Senate rules -- which Bill Frist had been threatening to "nuke" back in 2005 -- state that if one member wants to debate or introduce motions and amendments they can do so for as long as they like unless cloture, which requires 60 votes, is invoked.
Even for the prospect of the filibuster to have proceeded as far as it did is a testament to the hard work and power of activists and progressive online media outlets. Bob Fertik of Democrats.com, the news site BuzzFlash.com and the Young Turks radio show led by host Cenk Uygur were some of the early and most earnest advocates for Democrats to come out and push hard for a filibuster when the media and the "Washington consensus" had already named Alito to the Supreme Court. John Kerry was reminded of his campaign pledge to filibuster any nominee who would not protect Roe v. Wade, and eventually with the aid of Sen. Edward Kennedy, Kerry turned the tide.
By the late weekend, Democrats who had come to view an Alito nomination as a done deal eventually -- and grudgingly -- said they would support a filibuster, even as they publicly stated a filibuster would never work.
Illinois Democratic Sen. Barack Obama was reported to have criticized the idea of filibustering Alito earlier last week, but on Sunday he pledged he would vote for one. Obama didn't muster up much enthusiasm for it as a political tactic, however. "There's one way to guarantee that the judges who are appointed to the Supreme Court are judges that reflect [Democratic] values," Obama said. "And that's to win elections."
Sen. Joe Biden of Delaware was less sanguine over the weekend even as he promised a vote against Alito. "I think a filibuster makes sense when you have a prospect of actually succeeding," said Biden, adding, "I will vote one time to continue the debate." Biden said that in any case, "the fact of the matter" was that Alito would be confirmed. Minority Whip Dick Durbin on the other hand said it was going to be much easier for him to cast a "no" vote against Alito than it was for his "no" vote against the previous nominee, John Roberts.
While the line of questioning the Senate Democrats took in the Judiciary Committee hearings with Alito often appeared to be more about political vanity than hard questions about the role of power in the executive branch, it has to be recognized that the political opportunity was once again there for the Democrats' taking, only to be rejected in favor of a cautious approach that has paid few dividends since Bush took office.
Republican Sen. Lincoln Chafee's rationale for voting against Alito on Tuesday was that the idea of Alito being on the Supreme Court went against his "pro-choice, pro-environment, pro-Bill of Rights" sensibilities. One wonders, what exactly are the sensibilities of the Democrats who will vote to confirm Alito?
Note: This article has been updated since the Senate cloture vote on Monday.