ConfirmThem

By Paul Zummo Posted in Fillibuster — Comments () / Email this page » / Leave a comment »

That was my response after reading Paul Mirengoff's post on PowerLine this afternoon. He speculates on the potential Democratic reaction to John Fund's column (which has been discussed on this site).

In political terms, Fund's information increases the likelihood of solid Democratic opposition to Miers and maybe a filibuster. I've always thought that, in the end, Democrats might well come down hard against Miers. First, quite apart from any assurances Dobson and others may have received, many liberals distrust nominees with deeply held traditional religious beliefs. Second, Miers was never going to testify in way that would give the Dems (and the influential interest groups that support them) comfort about Roe. Third, Miers is vulnerable in ways that Roberts was not, making it less risky to oppose her. Now, the likelihood of unified, forceful Democratic opposition is somewhat greater.

This may put conservative Republican Senators in a position to sink the nomination should they so chose. Indeed, if the Dems filibuster, conservative Senators could sink Miers without taking a strong anti-Miers position, simply by declining to get behind the nuclear option. But it's not clear yet whether the Dems in the gang of 14, who can effectively prevent a purely Democratic filibuster, would support the filibuster of a nominee who is less demonstrably conservative than the next one President Bush is likely (one hopes) to send up.

The prospect of this nomination triggering a debate on the nuclear option is perhaps the worst possible scenario for the White House. There could have been no other reason to select Harriet Miers other than to guarantee easy passage of a relatively unknown (stealth) candidate, thus avoiding a messy scene in the US Senate. But if a substantial number of Democrats decide, for whatever reason, to oppose this nomination, then not only would the administration have the fight it so desperately tried to avoid, it would have a fight without the support of much of its base.

Which of course poses a dilemma for conservative opponents of Miers. We were all ready to unite in a solid front to debate the constitutional option and urge that all nominees be brought to a floor vote. It is certainly my contention that all judicial nominees deserve an up/down vote. And yet, what do we do if Miers' nomination should be filibustered? I would never support a filibuster, even if I believed it would be the only means by which to keep Miers from the Supreme Court. But I am not sure how energized I would be to wage a war on the filibuster, and I'm sure many of you would have the same reluctance to fight back.

Of course all of this could prove to be a moot point. A filibuster would mean that 40-50 Senators oppose the nomination. Assuming 8 or 9 Republicans publicly (or not so publicly) come out in opposition, then roughly 30-40 Democrats would have to also oppose the nomination. But would the Republicans join in the filibuster? Unlikely, meaning that almost the entire Democratic party would have to oppose the nomination. I can't imagine Democratic opposition being so unified - and if it were, it's equally hard to imagine that there would be just enough votes for a filibuster, but not enough for an outright rejection.

Let me put it this way. Assume all Democratic opponents of Miers seek to filibuster, but no Republican opponent joins in the filibuster. This means that at least 40 Democrats oppose, while no more than 10 Republicans simultaneously oppose Miers. I can't see that many Democrats opposing the nomination, while I also think a greater number of Republicans will decide to vote against her. In other words, it would take a perfect storm of heavy Democratic opposition combined with minor Republican recalcitrance to trigger a filibuster. Miers might not have 60 votes to confirm, but she will not need it assuming her Republican detractors fail to join the very spectacle they derided mere months ago.