WASHINGTON—If Samuel Alito wins Senate confirmation to the Supreme Court as expected, he will have seven Republicans and seven Democrats to thank.
They call themselves the Gang of 14. Their deal eight months ago kept alive the possibility of filibusters against judicial nominees, but made them much harder to wage.
As a result, it looks like Alito will thread the Senate needle. Democrats are likely to muster more than 40 votes against him in the 100-member Senate. That's enough under Senate rules to sustain a filibuster—endless debate in an effort to kill his nomination. But there is no evidence that they will filibuster, and he's likely to be confirmed on a largely party-line vote.
For that the Gang of 14 can claim considerable credit. They may have set a new standard for the confirmation of Supreme Court justices—or restored an old one where bipartisan comity prevailed instead of excessive partisanship.
Simply put, the Gang of 14 agreed that only under "extraordinary circumstances" should a Senate minority attempt to block a judicial nomination by filibuster.
"It changed the paradigm," said Sen. Ben Nelson, the conservative Nebraska Democrat who helped organize the bipartisan deal. "For me, the bar is now higher" for a filibuster.
President Bush, Nelson said, could have nominated a jurist so extreme that Democrats would have felt compelled to filibuster. He "could have sent someone who would have drained all the blood from your head, even for me."
But he didn't. He chose Alito, who while clearly conservative, is also a 15-year appellate judge rated highly qualified for the Supreme Court by the American Bar Association.
Several Republican members of the Gang of 14 have declared that Alito does not present the "extraordinary circumstances" required to justify a filibuster. Democrat Nelson plans to vote for him, and other Democrats from so-called "red states" that voted for Bush may as well.
Bush and Senate Democrats have been building to this moment for five years. It began during the 2000 presidential campaign when Bush held up conservative Justices Antonin Scalia and Clarence Thomas as his models for the Supreme Court.
In response, during Bush's first term Senate Democrats filibustered 10 of his appellate court nominees whom they deemed too conservative to serve. That unprecedented tactic was intended as a warning to Bush not to choose an extreme conservative for the Supreme Court.
Conservatives reacted by pushing the Senate Republican leadership to exercise a "nuclear option" that would ban senators from being able to wage judicial filibusters at all. But Senate traditionalists of both parties viewed that threat as an unacceptable infringement on the Senate's hallowed right of extended debate.
The bipartisan Gang of 14 defused that time bomb.
The seven Republicans among them said they'd never support a bid to change Senate rules to ban the filibuster so long as their seven Democratic partners refused to support a filibuster except in "extraordinary circumstances." Subtract those seven GOP votes from the Republican majority of 55 and there would be no majority for the "nuclear option."
Thus the 14 forged a center that held, denying power to either party's extremes.
Conservatives angry at the failure to ban judicial filibusters tried to block moderate Republican Arlen Specter, an abortion rights supporter from Pennsylvania, from becoming chairman of the Judiciary Committee. But Specter, a canny inside Senate player, prevailed.
Yet now Bush appears on the verge of the bigger victory—his long campaign to shift the Supreme Court ideologically to the right. Chief Justice Roberts last week joined Scalia and Thomas in dissenting from an assisted suicide ruling, and Alito, many observers believe, may well be more conservative than Roberts.
The ideological composition of the court could define American law on divisive questions involving abortion, religion, race and privacy. But the Gang of 14 took some of the ideological edge off Roberts' and Alito's confirmation struggles.
"It put the liberals in a box," said Keith Appell, a Republican strategist who helped organize support for Roberts and Alito. "It took judicial philosophy off the table."
"It put the onus on Democrats, put the burden on the them to figure out how to explain what was so extraordinary about the people they want to filibuster," said Ron Cass, former dean of the Boston University Law School and chairman of the pro-Alito legal group Center for the Rule of Law.
On the other hand, some analysts believe that the Democrats' initial filibuster of 10 appellate court judges was so dramatic that it gave Bush pause and pushed him closer to the center.
"It caused the president to trim his sails in terms of Supreme Court nominees," said Ross Baker, a political scientist at Rutgers University who has studied Supreme Court confirmations. "He chose one very smooth man (Roberts) and one very bland man. They offered very, very unpromising targets for the Democrats.
"Without the warning shots of the Democrats, we could have had different people."
Still, Alito is sure to get fewer votes than Roberts, who was confirmed 78-22. Alito could get fewer than 60, a signal to Bush that the opposition was numerous enough to mount a filibuster if they'd been sufficiently provoked.
Alito's activist detractors, meanwhile, rage about the Gang of 14.
"The point of the deal was to preserve the filibuster for a bad Supreme Court nominee," said Kim Gandy, president of the National Organization for Women. "We are now at that point.
"If someone as extreme as Alito ... cannot be filibustered, then I don't know who could ever be filibustered."
In that analysis, the Gang of 14 handed Bush victory in his five-year battle to shift the Supreme Court to the right.
But Republican victories in the elections of 2000, 2002 and 2004 solidified their control over Congress and the White House. If Democrats want to block conservative Republicans from the Supreme Court, their surest remedy lies less in a right to filibuster than in winning elections.
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(c) 2006, Knight Ridder/Tribune Information Services.
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