SCOTUS Games: The Magnificent 7 Ride Again?

Will there or won't there be a filibuster of the President's nominee to replace Sandra Day O'Connor at the Supreme Court? Democrats refuse to rule it out. The seven Republicans who signed the famous "no filibuster except in extraordinary circumstances" have been pretty tough in saying that a Supreme Court appointment is not inherently extraordinary, and that they expect an up or down - at least McCain, DeWine, and Graham have been.

But is a filibuster the only danger for the President's eventual nominee? With that in mind, I thought that this quote from Lindsey Graham (scroll to last item) was interesting:

"Every Republican is united around this fact -- we're going to give the nominee an up-or-down vote, [though] every Republican may not vote for this person."

Of course, in a normal world, it makes perfect sense to not commit oneself, let alone one's fellow senators, to vote for someone who has not even been nominated. But the Senate these days is not operating as a normal body. Rather, it has become a totally polarized body in which there is little room for compromise, so every word by people such as Graham is parsed for what it might mean for party discipline.

By stressing that Republican senators may vote against the President's nomination, Graham essentially makes it possible for the seven Republicans in the Gang of 14 to keep their pledge to use the so called nuclear, or constitutional, option of doing away with filibusters on judicial nominations, while not assuring that Bush can put a conservative nominee on the court. What do I mean? Well, if there aren't 51 votes to confirm a nominee, then no filibuster is necessary. The seven Republican signatories could vote to end filibusters, then turn around and vote against the nominee, preventing his confirmation (assuming a united Democratic Party block). In such a scenario, the nomination might never even come to a vote - surely the White House, and Bill Frist, can count votes.

Is this likely? Probably not. Given that Vice President Cheney can supply the 51st vote in the event of a 50-50 tie, the a united group of Democrats (and the nominally independent Jeffords) would need to pick off six GOP senators to defeat a nominee. The Republican 7 would be under enormous pressure to support the president's pick. On the other hand, Snowe, Chaffee, and Collins are hardly reliable votes if the president nominates anyone to the left of where O'Connor has been the last few years. McCain is McCain. Arlen Specter, not a member of the Gang of 14, might vote not to confirm. That would be 5, and the Democrats would need just 1 more - or 2, if McCain decides his presidential ambitions demand that he support a conservative nominee. But there are others who could be peeled away from a nominee in the right circumstances - gang of 14 members Warner, DeWine, and the aforemention Graham; Hagel, Coleman, Murkowski, and Voinovich; maybe even Elizabeth Dole or John Thune, the latter of whom has shown he is not afraid to play hardball with the President, and use nominations as a bargaining chip in doing so.

It's not likely, of course. But it's worth keeping in mind, given that so much of the coverage seems to assume that the only real issue is whether or not the 7 Republicans in the Gang of 14 will vote to break a filibuster.

So who should the President nominate anyway, and who should Centrist Senators be prepared to reject? The Centerman hopes to address those issues in the next several weeks.