The Right Coast

October 31, 2005
Will Alito be Confirmed?
By Mike Rappaport

Tom reports Rick Hasen's prediction that Sam Alito will not be confirmed. Rick writes:

Judge Alito will not be confirmed, because Democrats will threaten to use the filibuster for a nominee they will strongly paint as anti-choice. Moderate Republicans, such as Olympia Snowe, won't vote to trigger the nuclear option, and Judge Alito will not get a vote on the floor of the Senate. My level of confidence in this prediction: not high.
Well, it is awfully early to be making these predictions, but given all the caveats about how things might change, I disagree with Rick.

While ideology is an important factor in determining whether a nominee will be confirmed, other factors are also significant. One such factor is qualifications, and Alito's are among the best. Another factor is how the nominee comes across in person -- perceived fairness, thoughtfulness and personability -- and Alito (who I knew a little in the Justice Department in the 1980s) does very well on that score as well. These other factors will make it hard for moderate Democrats to vote against him, and make it extremely hard for them to uphold a filibuster. My sense is that Alito does not have enough (any?) opinions that can be branded as far right to overcome these factors.

Moreover, the filibustering of a Supreme Court nominee will not be like the filibustering of circuit court nominees, which operated below the radar screen of most of the public. The filibusterers will be required to reaffirm their filibuster over and over again. There will be significant pressure on those who are filibustering and delaying the process to allow the nominee to go ahead.

While Hasen argues that the moderate Republicans will not be willing to vote for the nuclear option, I believe they won't need to. The moderate Democrats won't vote against cloture of the filibuster. But if for some reason the Democrats can get, say, 40 or 41 votes to support the filibuster, that small number will make it harder for the moderate Republicans to avoid voting for the nuclear option. In the end, it is likely that a compromise would be worked out that would allow the nominee to go forward, but would avoid the nuclear option -- the same resolution that happened last Spring and has happened over and over again when the nuclear option has been threatened.

Or so it seems to me now.