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Dick Durbin on a Possible Filibuster of Alito Nomination: "unclear whether we have 41 Members who are willing to stand up for that fight."--

At Northwestern Law School at noon today, Senator Dick Durbin, the second ranking Democratic member of the Senate, announced that he would vote "No" on the nomination of Judge Alito to the United States Supreme Court.

In response to a question from an audience of Northwestern law students and faculty, Durbin disclosed that the Senate leaders were counting votes, not only on Alito's nomination, but on the possibility of a filibuster: "At this point, I wouldn't want to project whether we will have a filibuster."

On the nomination more generally, Durbin said that one Democrat, Ben Nelson of Nebraska, had publicly indicated that he would vote for Alito, and one undisclosed Republican Senator had privately indicated that he or she would probably vote against Alito.

In a brief press conference after the speech, Senator Durbin asserted about the Alito nomination: "Whether it will lead to a filibuster, I will be able to give you a better idea next week." He also declined to disclose whether he favored a filibuster. Durbin argued that members of the Senate have to draw their own conclusions on "whether to take it to that step." He elaborated: "If you don't have the numbers, you don't have the votes." It's "unclear whether we have 41 Members who are willing to stand up for that fight."

JohnAnnArbor:
"If you don't have the numbers, you don't have the votes."

Deep thoughts with Senator Durbin...........
1.19.2006 2:58pm
James Lindgren (mail):
JohnAnnArbor: Durbin might have been just restating what he meant by "If you don't have the numbers."
1.19.2006 3:07pm
Defending the Indefensible:
OT but there is a new brief out by DoJ on the warrantless espionage issue.
1.19.2006 3:39pm
Defending the Indefensible:
Re Durbin's statement, I think it is incredible cowardice to be unwilling to stake a position unless you think you will prevail. If he is in favor of a filibuster, he should say that he is, if he is opposed then he should say that. To say he is only in favor if 40 other senators agree is to lack the courage of his convictions.
1.19.2006 4:18pm
Daniellee (mail):
Reading the first few pages of the text, relying as it does as a factual foundation on OBL's stated intention to strike America again, and today's release of the tape by OBL,I am now convinced more than ever that he reaslly works for Rove.
1.19.2006 4:19pm
Defending the Indefensible:
Since I raise it, although I have no influence, I am in favor of a filibuster. I have previously documented where I think Alito dissembled repeatedly in the hearings, and even several of his supporters have agreed. I consider dishonesty to be disqualifying for a member of the Supreme Court, he should not be confirmed even if 58 Senators think otherwise.
1.19.2006 4:22pm
Cecilius:
Once again, re: Alito's purported dishonesty, "Defending the Indefensible" lives up to his/her name.
1.19.2006 4:35pm
Houston Lawyer:
Break out the mattresses. I would love to see an attempted filibuster. I'm talking the real kind where senators are required to keep on talking until they can't go on. Biden may be able to do this himself forever if you point a camera at him. Hillary could expand on her plantation remarks. Talking heads could explain that the filibuster is the typical Democratic party response to civil rights initiatives. Robert Byrd could wear that hood he's been keeping in the closet all these years. The possibility of real humor awaits.

I would also like to see McCain and the other Republican members of the gang of 14 squeezed.
1.19.2006 4:39pm
Frank Drackmann (mail):
Why wasn't Clarence Thomas filibustered in 1991? If I remember right he didn't get much more than 50 votes.
1.19.2006 4:45pm
Defending the Indefensible:
Cecelius:

As I pointed out, even some of Alito's supporters concur that he was less than forthcoming in his testimony:

http://volokh.com/posts/1137105814.shtml#53543

http://volokh.com/posts/1137105814.shtml#53557
1.19.2006 5:08pm
Defending the Indefensible:
1.19.2006 5:09pm
Michael B (mail):
Defending the Indefensible,

Re, the CAP issue, you nor anyone else has adequately addressed this. An impoverished set of facts leveraged with a lavish supply of speculations.
1.19.2006 5:24pm
Cecilius:
Filibustering a Supreme Court nominee on those grounds is certainly indefensible. If you're going to pull the trigger on an otherwise unprecedented filibuster of a Supreme Court nominee with 50+ votes for confirmation you'd better have something better than a gut feeling that he lied about what he does or does not remember about a now-defunct organization from 20 years ago. Hell, I found out that I was both a member of my homeowner's association board and my undergraduate alumni association and didn't remember. And I ended up agreeing to join those groups less than 5 years ago (and used my Alumni Association membership to get a break on car insurance).

It's certainly possible he lied about his recollection. It's also possible that he forgot about the group until his memory was forcefully prodded during the hearings. Who knows? By now, Alito's probably not even sure what he remembered about the group and when. But one's unsubstantiated supposition, conspiracy theories, or divine premonitions about what was going on in someone's head is not enough for a filibuster. I'm not saying that you need a Chappaquidick moment, but relying on the "feeling" of some that he was less than forthright about his memories says more about what you don't have (any persuasive and documented reason why he'd be a bad Justice - like being perpetually reversed on appeal or abusing attorneys and colleagues), than what you do.
1.19.2006 5:31pm
Stephen Macklin (mail) (www):
It was certainly interesting to watch Kennedy attempt to tar and feather Alito with an article he didn't write in a magazine he didn't subscribe to. That on its face is such a stretch it doesn't matter that Alito supported the efforts of the group that published the magazine on an issue unrelated to the article. It doesn't even matter that article was written as a spoof.

To see them conduct a filibuster over something so trivial and nonsensical would be sad.
1.19.2006 6:39pm
KeithK (mail):
DtI, I don't think it shows cowardice to speak about a filibuster the way Durbin is. It's simple pragmatism. I think there's a clear subtext that Durbin and many Democrat Senators want to filibuster Alito, because they know that is the only way to keep him off the court. But there's no point in publicly stating an intention to filibuster when you can't sustain it. While it might please some of the base, the potential political cost with other voters makes it a losing proposition if you can't sustain it (and maybe if you can). A grand moral stand which fails and may cost you politically is not worth it.
1.19.2006 6:43pm
Defending the Indefensible:
Michael B and Cecilius, you are harping on the CAP issue as if that were substantially my concern. It isn't, it never was, and if you read what I wrote in the prior thread, I was and am more concerned about his dissembling over Vanguard, because it's a more obvious case of changing stories over time.

While Chris D posited a possible interpretation, that Alito "didn't know Vanguard was involved, ruled in their favor, learned about it afterwards, and recused himself even though he hadn't done anything wrong just to be safe", this too does not wash because Vanguard was part and parcel of the case, and he could not have discovered it "afterwards."
1.19.2006 6:54pm
Alaska Jack (mail):
Michael B -

I liked your link. I made one of the same points here.

As a writer and editor, I can't help but notice that Alito opponents love to use the word "tout" -- they use it to describe his CAP membership practically every chance they get. And I can appreciate why: It gives the impression -- without actually saying so -- that Alito bragged about his membership and tried to enlist all his friends and neighbors.

If that's Alito's idea of "touting" something, remind me never to have him write me a letter of recommendation.

- AJ
1.19.2006 6:57pm
Alaska Jack (mail):
Keith K -

You write:

DtI, I don't think it shows cowardice to speak about a filibuster the way Durbin is. It's simple pragmatism.

I don't think these terms are exclusive -- in fact, my sense of it is that they quite often go hand in hand. Doesn't what we call "bravery," indeed, often fly in the face of pragmatism?

I in no way mean this to bash your otherwise reasonable observation. Durbin probably is doing the sensible thing. I just think that what one person considers sensible -- fleeing in the face of bodily harm, for example -- others might consider cowardly.

- AJ
1.19.2006 7:03pm
Michael B (mail):
Defending the Indefensible,

"touting" CAP
"dissembling" Vanguard
"fill in the blank" fill in the blank
lions and tigers and bears, oh my!

Interesting in this thread, given Durbin's pragmatism and "recusal" from stating, in positive and definitive terms, his rationale for considering a filibuster (which I positively do hope the Left/Dems and Dems deploy). And if you're concerned over the Vanguard issue (the links you provided highlight the CAP issue and do not mention Vanguard at all), then you must have been positively outraged over Stephen Breyer's Lloyds of London issue.

Or maybe not.
1.19.2006 7:30pm
Michael B (mail):
Alaska Jack, thx, cool pseudonym btw - no pun intended :-/
1.19.2006 7:45pm
PersonFromPorlock:
The Democrats' big problem is that Alito could only seem less threatening if he were purple with a green tummy. He simply doesn't rouse the sort of emotions that could justify a filibuster in the public's eyes.
1.19.2006 7:55pm
Defending the Indefensible:
Michael B,

The links I highlighted were part of an ongoing discussion in which I was a participant, I was merely pointing out where Alito's supporters thought he was dissembling. If you want my take on it, read my posts in that thread. I've been consistent in my own criticism.

I'm not familiar with Breyer's "Lloyds of London issue" and he's not up for confirmation, so I question the relevance, and contrary to what you may think, not everyone is a narrow partisan. This isn't about winning some sort of contest, it isn't rooting for your home team, and I'm just not that interested in political sports anyhow.
1.19.2006 8:39pm
JLR (mail) (www):
I think it's likely that Senator Durbin was revealing that "one undisclosed Republican Senator had privately indicated that he or she would probably vote against Alito" in order to try to get other moderate Republican Senators to feel that if they voted to sustain a filibuster, they wouldn't be alone.

For what it's worth, the only Republican Senator who I think would have the exigent political circumstances and the temperament to vote to sustain a filibuster of Judge Alito would be Rhode Island Senator Lincoln Chafee. He's facing a rough reelection race in 2006; as of October of 2005 he was lagging behind all three Democrats vying for the Dem nomination in money-raising (see this link ), and Senator Chafee is the incumbent. Plus, it goes without saying that Senator Chafee is a moderate Republican in a Democratic New England state. Senator Chafee probably is thinking that voting to sustain a filibuster of Judge Alito might win him points with moderate and independent voters. But Democratic Senator Ben Nelson is on record as being in support of Alito's confirmation (not just in support of cloture). Plus, I am sure that at least some of the Democratic members of the Gang of 14 will vote for cloture (even if they vote against Judge Alito's confirmation on the Senate floor). So I think Senator Durbin was acting as the Supreme Court confirmation version of the role William Safire identified as the omnipresent being in Presidential primaries: "The Great Mentioner."
1.19.2006 10:25pm
JLR (mail) (www):
Just to clarify: the quote would indicate that Senator Durbin simply was talking about "voting against Alito," i.e., voting against his confirmation in an up-or-down vote. But I wouldn't be surprised if, as I wrote above, that Senator Durbin mentioned that in order to try to assuage moderate Republicans that it would be okay for them to join Democrats in opposing Alito, not just on an up-or-down vote but also to support sustaining a filibuster.

In my opinion, however, it's all over but the shouting. There might be Senator Lincoln Chafee and a couple of other moderate Republicans voting against Alito on the Senate floor, and perhaps Senator Chafee (as I mused about above) might even join the Democrats in voting to sustain a filibuster. But I see Judge Alito being confirmed.
1.19.2006 10:31pm
Frank Drackmann (mail):
Trick question: If the Republicans filibustered something, what would prevent a senator from reading verbatim the autopsy report of Mary Jo Kopechne?
1.20.2006 6:44am
Phil (mail):
Good taste
1.20.2006 10:11am
Adam (mail):
This is a predictable offshoot of Godwin's Law: any discussion of Senate Democrats inevitably leads to a Chappaquidick reference, as though the judgment of the people of the Commonwealth of Massachusetts ought to be ignored.

Does that mean that every time the First Lady is mentioned, one ought to remind people that she killed her ex-boyfriend with a car?

Let's get back to substance, okay?
1.20.2006 10:13am
rico:
The judgement of the people of the Commonwealth of Massachusetts is obviously suspect and should be ignored . . .
1.20.2006 11:57am
farmer56 (mail):
I think anyone that would belong to a club (the US Senate) that would remain in the club with a member that would leave a person to drown, and not try to get help, any member of such a club should resign. Unless the member that committed such a terrible act resigned.
1.20.2006 3:30pm
Frank Drackmann (mail):
The reason no Republican senator could read Mary jo Kopechnes autopsy report is that no autopsy was performed.
1.20.2006 3:39pm
NickM (mail) (www):
Considering Durbin's lies to (and about) Jonathan Turley, why would anyone believe that a Republican senator had told Durbin he was leaning toward voting against Alito? IMO that's just an attempt to excite the Democrat activist groups to pressure Democrat Senators to vote for a filibuster (or at least to vote no on confirmation). If you make them think they can win, they will try hard.

Nick
1.20.2006 4:49pm
farmer56 (mail):
Adam

Gee, I read you link. Laura Bush was involved in an accident that resolted in death. That compares with a sitting Senator leaving the scene for more than an hour? or, two,or three, or more????
1.20.2006 5:12pm
Defending the Indefensible:
It appears that Ben Nelson is having second thoughts on confirmation.
1.21.2006 5:51am