Scalito: A Filibuster-Worth Pick?

Democrats will soon have to consider whether the nomination of Sam "Scalito" warrants a filibuster to stop.

What are the main factors that should influence such a decision?

I think the factors break down between the practical and the principled.

The practical factors, of course, are whether the filibuster would be successful, both in its immediate impact on defeating Scalito, and on its deterrent effect in persuading Bush to nominate a more moderate jurist. A secondary practical factor is that of whether the party risks opposition from the conservative press, and public opinion for Democratic Senators in red states, by filibustering.

Principled factors include the party's long term policy agenda and ideological beliefs. Other principled factors could include the historical application of the filibuster to supreme court picks by a minority party, the Democratic Party's past support for "Scalito" and other conservative nominees, both under the current administration, and in past decades--such as the well-trumpeted (by conservatives) unanimous support for Scalia in the 1980's.

From a practical standpoint, I think a filibuster would fail. The Republicans would initiate the nuclear option. The conservative press, which is already trying to force an easy confirmation, would be hostile (witness the early antics of Tweety).

But if "Scalito" warrants a filibuster, I believe Democrats should go to the mattresses, anyway.

This is because while it's immediate practical implications might be negative, it would help, if not force, Democrats to finally confront the Constitutional issues that underly its opposition, thus serving to help distinguish itself from the radical conservatives heading the Republican Party.

As for any rhetoric from conservatives in the media that "it's unprecedented to filibuster" judicial nominees, and that Democrats risk appearing unprincipled, if not inconsistent, in approving past conservative appointments but opposing this one, let me just say this about that: That was then, this is now. The rules have changed. And the Republicans have changed them. As Jacob Hacker and Paul Pierson point out in their book, Off Center, the Republican Power Elite has spent the last 20 years skewing the rules of politics to the benefit of themselves and their privileged supporters. Democrats should not feel obligated to play by old rules that the media wants applied only to the Democratic Party. If the filibuster is a tool remaining in the political arsenal, Democrats should not hesitate to use it.

As for the risk a Democratic led filibuster could cause for the next Democratic Administration or Democratic Senate, do you think the next Republican Congress in an Evan Bayh or Joe Biden administration is going to play nicely regardless of how the Democrats treat Scalito?

It's time that Democrats recognized their status as the minority party. As Hacker and Pierson point out, Democrats are a congressional minority in part due to the biases inherent in a system that apportions Senate votes equally to all the states, minimizing the influence of larger states with big cities (in fact, as the authors point out, the Democratic share of the vote in both the House and the Senate is higher than its representation), and in part due to the influence of redistricting in the House. Neither institutional constraint is going away anytime soon. The Democrats face a long road ahead. One of the ways to start the path back to power is to set out for all to see, what the party stands for. The Scalito nomination seems as good a place as any to start.