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Frist's Nuclear Option May Be Big Poof

Bush's weakness means the Senate's nuclear option isn't credible to save Alito

This is Dark Cloud on Wednesday, November 02, 2005.

Hurricane Harriet is gone, Libby indicted, and now comes Judge Alito to our attention, a man in comparison with whom Justice Scalia seems passing fair. Alito comes equipped with unsmiling children and a wife dressed in early 20th century sofa skirting and tight hair that screams “repressed and unhappy in that reassuring 1950’s way” which apparently speaks to so many neo-cons who clearly have Mother issues. On the upside, Alito is reassuringly in need of work. He has made no killing in business or investments, and this above all speaks to his honesty and innate integrity.

A court which used to be exclusively white, male, Anglo, and Protestant will have five Catholics, two Jews, and two Protestants if Alito is elevated. Given that most were nominated by conservative Republican Presidents, we now lay to rest the image that the establishment is anti-Catholic, anti-Semitic. Because hardly anybody finds such mention worthy or important. Even the loss of 50% of the women with O’Connor’s resignation drew little response, other than it would have been nice if Bush had found a competent woman. I suspect in my lifetime we’ll have a court of four women and about as many of a heritage that did not flourish in Western Europe. I like that.

But I don’t like Alito. He'll help gut Roe V. Wade. And I don’t think it’s a slam-dunk that he’ll get in, and I hope the Democrats filibuster.

If the Democrats filibuster, the GOP has made a big deal and received coverage for its retaliatory threat of the “nuclear option,” by which is meant that a complicated and controversial parliamentary maneuver would be utilized. At the first sign of filibuster, Senate Republicans would seek a ruling from the chamber's presiding officer, Vice President Cheney, whether filibusters against judicial nominees are unconstitutional. Under this procedure, it would take only a simple majority or 51 votes to uphold the ruling, which would be easier for the 55-member GOP majority to get than the 60 votes needed to break a filibuster or the 67 votes needed to change the rules under normal procedures. Then, it would be a simple majority vote to confirm a nominee. This is very outside the normal procedures, and rancor between the parties would be high.

It is assumed that because Bush, in this second round, caved to his conservative base in nominating Alito, that the united GOP will trump at first vote the Democrats, who are – per usual – seemingly without a leader and in fact seem composed of Mr. Cellophanes and What’s Her Names for all the organized battle they offer. At least until yesterday, when minority leader Harry Reid of Nevada illustrated what an ineffective leader Bill Frist is and forced the Senate into secret session to, reasonably, find out how the Committee supposedly investigating pre-war intelligence, and how the administration manipulated it, was going. Turns out there has only been one meeting of that committee formed last year, and its report is due in two weeks. So the GOP was outmaneuvered and exposed as putting their party above national security. Pretty crafty of Reid.

But it also illustrated something else. The GOP is not 100% anti abortion, and people like Arlen Specter and a few women like the duo from Maine, both moderate Republicans, are clearly pro-choice. There are others. It is not for sure that the GOP, even with the nuclear option, has enough votes at all for Alito. A year, two years ago people would vote with the President’s wishes. But the President is such a black hole at the moment, unpopular and getting worse that Republicans are backing away. And because of the backlash against those not exclusively empowered by the far right, I don't think they'll support his choice.

Let’s be honest. There are probably more than twenty women judges of all political shades who are utterly qualified and willing to ascend to the Supreme Court. That Bush thought his clearly unqualified and only marginally willing if adoring friend Harriet was the only one speaks volumes. I think the Dem leadership knows all this, and welcomes a fight because they won’t think the votes are there for a clearly anti-choice candidate, one who always sides with enforcement institutions over individual rights. I think they’ll welcome the nuclear option, and pro-choice GOP like McCain, the Maine twins, Specter, and several others will deprive Bush of his choice simply because, at this point, it’s his choice, and they want back in with the public that increasingly despises him.

In aggregate with our own conservative state indicating TABOR isn’t long for this life, and voting in several measures that cost actual cash for commonweal benefit, I’m beginning to think that the underpinnings of neoconservatism – aggressive pseudo-patriotism crossed upon selfish interest – is going to either change or collapse. Bush enacted nearly all that the conservatives wished and unintentionally exposed its hypocrisies and falsehoods, which he himself hasn't recognized, and with an election coming up he may lose it all in one year’s time.