WASHINGTON (AP) - Democrats haven't completely given up the notion of filibustering Samuel Alito's nomination to the Supreme Court, though they're certainly not talking about it before his confirmation hearings. A slip of the tongue, an intractable attitude or a dramatic revelation next week could still bring another Senate showdown.
"I don't think anybody today sees a reason for a filibuster, but they may after the hearing if the answers are troubling to them or they feel they haven't gotten the answers to important questions," said Carl Tobias, a University of Richmond law professor.
Alito, a longtime conservative lawyer and judge, will face the Senate Judiciary Committee on Monday for his confirmation hearings to become the 110th Supreme Court justice, replacing retiring Sandra Day O'Connor.
The Senate's majority Republicans are pushing for a final confirmation vote Jan. 20—if Democrats don't filibuster his nomination.
Democrats, the Senate's minority party, contend Alito is too conservative and could undermine some rights if confirmed. Some of their liberal supporters have urged Democrats to do whatever they can to block the nomination, including a filibuster.
It takes 40 votes to sustain a filibuster. With the Senate split with 55 Republicans, 44 Democrats and one Democratic-voting independent, Democrats could launch an Alito filibuster on their own without a single Republican vote.
But Democrats have said repeatedly they aren't planning to filibuster Alito, although they also have refused to promise to refrain from the stalling tactic on the federal appellate judge.
"I don't think it's wise for members to try and outline a strategy other than to make sure these hearings are comprehensive and they're done with dignity and respect for the nominee," said Edward M. Kennedy of Massachusetts, one of the Senate's leading liberals. "The future will take care of itself."
The final decision will be made after the hearings, said Sen. Charles Schumer, D-N.Y., head of the Democratic Senatorial Campaign Committee and one of the senators who will question Alito.
"If he's a mainstream conservative, if he doesn't use a court to impose his views on the American people, he's likely to get approved. Some people may vote against him because they don't want someone that conservative on the court," Schumer said. But at the same time, Schumer added, "If he is out of the mainstream and will use his tremendously powerful position as Supreme Court judge to impose his views on the American people, then there's a potential for a filibuster, and no one really knows that until the hearings."
Republicans say they're ready to fight if Democrats try a partisan filibuster, including the so-called nuclear option, which would let the GOP ban judicial filibusters. "I will use all the tools I have to simply get an up-or-down vote on the floor of the Senate for the president's judicial nominees," Senate Majority Leader Bill Frist, R- Tenn., said last month.
But experts said Democrats are not yet in a position to filibuster Alito, even if they wanted to.
To be successful, a filibuster would need almost all of the 44 Democrats behind it and certainly all of the Democratic leadership. But the Senate's senior Democrat, Robert Byrd of West Virginia, has said several times on the Senate floor that he has seen no reason to filibuster Alito's nomination. "There is not going to be any filibuster against Alito," Byrd insisted in December in a heated December exchange with Frist.
Other Democrats have echoed that since Alito's October nomination.
In addition, the "Gang of 14"—centrist Republicans and Democrats, including Byrd, who brokered a deal to end filibusters of nominees to lower courts and keep Frist from banning filibusters—has splintered, with at least two of the Republicans saying they would vote to ban filibusters if Democrats try one on Alito.
Frist needs a majority vote in the Senate to ban filibusters. If all 100 senators vote, Democrats would need 51 votes to stop Frist. None of the Republicans have said they would even consider opposing Alito.
To pull off a successful filibuster, Democrats need things to go their way both inside and outside the hearings, said Julian Zelizer, a Supreme Court expert at Boston University.
Inside, "Alito would have to not respond well, not in terms of answers he gives but how he responds to questions about abortion and 'one man- one vote,'" Zelizer said. "If he is too hostile, if he's too confrontational, if he fails to convey the sense that he's evolved on this issues since the 1980s, there is a chance that Democrats will see this as reason to filibuster."
Events outside the hearing will also have an influence, Zelizer said, especially the guilty pleas of Jack Abramoff, the once- powerful lobbyist who has agreed to testify in a political corruption investigation.
"If we start getting reports in the next week or so about Republican legislators who are going to be involved in investigations of money and politics and their ties to Abramoff, I think it will increase the willingness of the Democrats to be even tougher in the Alito hearings, sensing that the Republican leadership is in trouble," Zelizer said.
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On the Net:
Supreme Court: http://www.supremecourtus.gov
Senate Judiciary Committee: http://judiciary.senate.gov/
