Bench Memos

NRO’s home for judicial news and analysis.

Achievements Of The Filibuster


By pushing a filibuster vote upon their fellow Democrats, John Kerry and Teddy Kennedy have achieved quite a bit already. Among other things:

1. Absent the filibuster effort, lots of attention would mistakenly have been focused on whether Judge Alito would reach the filibuster-proof level of 60 votes on final confirmation. If he were to fall short of that, the media would proclaim that the vote level sends a warning shot that another nominee like Alito could be filibustered. By forcing an actual vote on cloture, Kerry and Kennedy have deprived the Left of this pretend-filibuster argument. The starting point now for analysis of the politics of any subsequent nomination is that a nominee like Alito can expect to receive more than 70 votes on cloture.

2. Kerry and Kennedy have turned the wrath of the Left against those 19 Democrats (nearly half the caucus) who voted for cloture. (Byron York quotes one angry, obscene diatribe from DailyKos.) I don’t see how this is going to help red-state Democrats. If only Kerry and Kennedy could have been uniters rather than dividers . . . .

3. By using the filibuster weapon against a nominee whom the public rightly recognizes to be superbly qualified, Kerry and Kennedy have undermined Democrats’ future use of that weapon. Crying wolf isn’t a good way to build credibility. (Of course, the Left hopes to show over time that Alito is a real wolf, but I have much greater faith in the public’s ability to recognize good judging.)


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