For Senate Democrats, a last stand on Alito
After an unflappable 18 hours before a panel of 18 senators last week, Judge Samuel Alito is all but assured confirmation in the full Senate - just not by Friday.
At 11 a.m. Tuesday, Senate Democrats are expected to delay the vote, despite an agreement with the panel's chairman, Sen. Arlen Specter (R) of Pennsylvania, to move Judge Alito's nomination toward a final Senate vote by Jan. 20.
The delay would give Democrats a last chance to discuss strategy on this vote face to face, to sift through Alito's response to written questions, to revisit hearing transcripts, and to do one last nose count on whether there is support for a filibuster to block the vote.
"It is a momentous decision, and they need more time to think about it," says Carl Tobias, a constitutional law professor at the University of Richmond Law School.
It also gives groups opposing the nomination another week - and the Jan. 22 anniversary of the 1973 Roe v. Wade decision, expected to draw hundreds of thousands to the nation's capital on the eve of the new vote - around which to organize. [Editor's note: The original version misdated the Roe v. Wade decision.]
"Nothing is over until it's over," says Marcia Greenberger, copresident and founder of the National Women's Law Center, which opposes Judge Alito. "What's really important is to let the dust settle a little and to let the implications of these hearings settle in."
Anti-Alito activists say they can pick up another million signatures in the run-up to a delayed vote, in a bid to focus senators' attention on the threat they say he poses to abortion rights, protection from discrimination on the job, and curbs on the abuse of executive power.
"We hope to go from 1 million [anti-Alito] petitions to a couple of million by the time the committee votes," says Ralph Neas, president of People for the American Way, which is also launching new TV and radio ads "to express to the American people the magnitude of what is at stake."
But despite talk of Armageddon in the Senate over the replacement for retiring Justice Sandra Day O'Connor, widely viewed as the swing seat on the Supreme Court, the issue never caught on with the American public.
"I don't see evidence that voters are engaged in this," says Jennifer Duffy, Senate analyst for the Cook Political Report, citing recent polls. "Barely half of voters had an opinion. For anything Democrats might gain, there's also the downside of looking obstructionist and postponing the inevitable," she adds.
With Republicans controlling 55 votes in the Senate, the numbers favor confirmation. A bipartisan agreement by 14 senators, the so-called Gang of 14, also puts a filibuster off the table, except in the case of "extraordinary circumstances," which no senator in the group has yet claimed is an issue in the Alito confirmation.
"I do not see the likelihood of a filibuster," says Sen. Dianne Feinstein (D) of California, a member of the Senate Judiciary panel, who says she will oppose the nomination. But she says that a delay in the vote is needed "to give members time to go over written responses to questions."
"If the majority leader pushes an earlier vote, it's a huge mistake, because it doesn't allow us to do due diligence," she adds.
Over the weekend, conservative groups lobbied GOP senators to back Chairman Specter and show up for a committee vote Tuesday.
"Delay always harms a nominee," says Manuel Miranda, who chairs the Third Branch Conference, a coalition of conservative and libertarian groups supporting the Alito nomination. "That's the No. 1 rule of nominations, but what they could do in a week when most people are on recess, I'm not so sure."
Some conservative activists were concerned that opponents of the nominee would use Martin Luther King weekend to use "the race card" on the nominee, but that didn't happen. Next week's March for Life, on the eve of a rescheduled Senate vote, sets up another flashpoint.
"The abortion issue is one that we can win, and we know it now," says Mr. Miranda, referring to the failure of the Alito hearings to rouse public opinion on the issue. But he adds that conservatives do not think that Alito will tip the balance on the court on reversing abortion rights. "Conservatives do not feel that with Alito, they will have the court. The prize is the [John Paul] Stevens seat," he adds. [Editor's note: The original version mischaracterized a comment by Mr. Miranda.]
In the runup to a final vote, Democrats and anti-Alito groups outside the Congress will try to refocus attention on the full range of issues at stake in Supreme Court decisions, especially privacy rights and balance of power issues.
"It's hard to get people to understand what the court means in their daily lives," says Debra Ness, President of the National Partnership for Women and Families, which is stepping up e-mails that make it easy for people to contact senators.
"If courts become a less conducive branch for advocacy, we will turn to the other two branches of government," she adds.