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     What about Warner of Virginia, one of the Gang of 7 Republicans? He came out after the notorious Gang of 14 deal strongly saying that if the Dems filibuster a non extraordinary candidate, he would go nuclear.

I refer you to this. Some details must be changed, since it was speculation before Roberts was nominated, and before Rehnquist died. Further, Saad et al have simply not faced further action.

However, read it and change "Estrada" to "Alito", and take it from there. And remember that McCain told Tony Snow that if the Democrats filibuster a "mainstream conservative," that the deal is off.

I totally agree with that analysis, Dales - this is McCain's "White Horse" moment - and I think the whole Gang of 14 deal was just something to make it more dramatic, where it would happen in a SCOTUS battle, not an appeals court battle.

Please elaborate on your suspicions about Specter IN THIS PARTICULAR CASE. I share the general skepticism about the Senator, but wonder and hope that the POTUS satisfied him here, given that Alito is a hometown judge who Specter has even tussled with in court. If Specter bolts in this case, I wonder if some of the blame goes to the WH - it seems they should have locked him in on this one considering his familiarity with the judge.

OTOH - if Specter bolts, I'd also hope the WH is prepared with instant retaliatory consequences, since the preparation should have indicated that need as well.

All this is, of course, arranged behind the scenes, but it better be arranged. That's the WH staff job a tad more than the Senator's.

As usual, very interesting analysis Leon.

I applied Bork's Theorem, which states that the likelihood of Arlen Specter doing the right thing by the Republican Party is inversely proportional to that thing's importance to the Republican Party.

Can dems convince the public that this is not a mainstream pick?  They are locking on to a couple of Alito's descisions that can be quite attention grabbing.  If they can win the framing wars that are no doubt underway already, being in favor of strip-searching a ten year old girl and being in favor of fully automatic weapons ownership are certainly talking points that would do no favors for the public opinion of the nominee.

If public opinion of the nominee is negative, my guess is that few senators will be willing to stick their necks out too far for the nominee.

It's just odd that of all the possible candidates, he'd take out his own. Has it been detremine which Pa. Senator will officially "host" the judge as he tours the Senate offices? I haven't seen yet, and if it's Santorum, I'd be worried that your prediction is liklier. If Specter, it's another peg holding him fast to the judge.

"determined"

upon what percentage of the "public" is limited to the Democrat Propaganda Machine MSM for information.  I somehow think that people are underestimating the reach of alternative media, whether talk radio or Internet.

IOW, the public opinion of the New York Times readership may be turned decidedly against Alito.  But their opinion was likely against Alito in any event.

-TS

Question 4: Will the Republicans successfully pull the trigger on the Constitutional/Byrd/Nuclear option?

Alito will be called

A racist

A sexist

An abortion clinic bomber



Not necessarily in that order.



It all comes down to Question 4. We need to rally the way we did against Miers. I think it will persuade the Magnificent 7 to think before revolting against the base.

"Question 3: Will the filibuster hold? This is one of the more interesting and difficult questions to call in this whole process. "

Actually, no, it is not.  It has been allowed to be made difficult, which is not the same thing.

Bottom line: as long as we have 51 votes there is no reason to permit a filibuster threat to work.  If the Democrats don't want to vote on this, then they can not vote on anything.  Including their own pet projects.  We have the majority: we set the agenda; and the agenda is an up-or-down vote on this candidate.

At least, the agenda should be an up-or-down vote.  Based on the Senate's record over the last three years, I don't actually trust them to follow through - but we shouldn't make it easier for them.  The filibuster works because the GOP lets it.

The left desperately wants to filibuster (just read dailykos for awhile) but I'm not sure how the general public will react to that. I think most people want someone who is highly qualified and intelligent, and they expect a conservative from a Republican president. So unless the public thinks Alito is extreme they will not look favorably on the unprecedented step of a democratic filibuster.

Most Americans will not think that supporting minor restrictions on abortion and allowing Christmas displays makes someone extreme. So it will be hard for the democrats to filibuster unless they can find something better to smear him with. They'll threaten to though, and most will vote against him.

There are many Senators on both sides who have already made up their mind on the issue-- but the ones who really matter are the ones with their finger to the wind.  Watch how Alito polls closely--  if it's dramtic enough (postively or negatively) expect to see some defectors.

When dealing with RINOs, especially egotisical ones like Specter, it's best to follow th rule that "whatever can go wrong, will go wrong." I'm not convinced myself that Specter will be vote against Alito (though I do think it very likely), but it's best to be prepared for the worst.

Alito is from New Jersey, not PA, although the 3d Cir sits in Phila.

what should be and what could be.  I think Leon's got it just about right.

I don't think we should be afraid of the filibuster or anything the left says about this nominee. If the dems filibuster I say let them! Let them stand up and talk continuously for days!!! After 4 or 5 days of this nonsense the American people will demand that the senate get back to work. Also let the left shout-out all of their usual attacks and slander. This is exactly what we asked for and should be ready to capitalize on the left finally showing the American people what they really stand for.

I agree that your scenario is reasonable, except for one thing.  There will be a handful of Democrats who will sit on the fence until the last minute.  If (when) it becomes clear that the Republicans have enough votes for the nuclear option, they will vote for cloture, and then vote against Alito on the floor.  So, the nuclear option will be avoided (with 61 Senators voting to end debate) and Alito will pass with 53 votes.

I'm making this prediction very early in the game, so I expect someone from Red State to buy me a beer if I'm right.

I think the Maine Delegation will split on this nominee.  I think Senator Collins, after much consideration will follow Graham, Warner and yes McCain and stick with the Republicans.  I think Senator Snowe will probably continue in her RINO...er...Maverick role and vote against the Constitutional Option should it come to that.

I think the delegation would also split on a floor vote to approve the nomination.

The choice of Alito brings the Red State Democrats front and center.....They had it easy with Roberts and Miers.....Now thye will be on the hot seat......this si where the real heat of this Battle will be.....therefore, Alito is an excellent choice

1)Rejoice

2)Gloat

3)Pray

4)Grin

5)Look around to see if anyone saw you

Repeat (as long as nobody is looking....)

First, if DeWine, Graham, McCain and Warner make credible threats that about blasting the filibuster before Reid announces one, he may not try it.  The is doubly true if Nelson, Pryor or other Ds in the "gang of 14" say that this is not an extraordinary circumstance, which it isn't.  They may vote no and Alito may only get 51-55 votes, but they will not filibuster if the threat is credible.

Second, Specter has his job because of this White House.  He has voiced his concerns (see the pro-abortion presentation during the Roberts hearings) but he has not stopped any nominee from getting a full Senate vote since Bush saved his job.  Additionally, Alito is from Philadelphia and thus is a PA native.  This should give Specter even more reason to avoid betrayal.  All that said, I think the Specter betrayal is more likely than other parts of your analysis.

Finally, I doubt a filibuster will hold unless new information comes out that we have not heard about.  The "gang of 14" made clear that being conservative is not enough to garner a filibuster and I think they are sincere in that belief (as well they should be).  Neverthless, statements like Graham's "The filibuster will be dead" or some such are quite reassuring and they signal that obstructionism will not be rewarded.  Hopefully similar statements from McCain, Warner, and DeWine will follow.

The filibuster is probably the wrong move for Dems. I suspect they'll concentrate of framing the issue of Alito being a bad judge, and forcing the caucus to vote against him unanimously. Reid is playing a deeper game here.

That way, the GOP doesn't have the filibuster issue to go with against Dems, and Alito's views (framed as extreme) can be hung around the neck of every blue-state senator. Goodbye Chaffee, Santorum and maybe others. Probably goodbye to Mccain's presidential run as well- he appeals largely to a maverick crowd that may be uncomfortable with Alito (at least after the campaign ads are done).

There will be a filibuster and the "nuclear option" will be used leading to Alito's confirmation.

The Democrats will claim that opposing Roe is an extraordinary circumstance that justifies a filibuster, since Alito could be the potential fifth vote against Roe.

Yes, there are documents to demand from when Alito worked in the Socitor General's office during the Reagan Administration, and the US Attorney's office in New Jersey. This could also present an opportunity for the Democrats to oppose the nomination, assuming those documents are not released, which I assume they will not be.

It'll come down to whether they can smear the man and make it stick. Look for a full court press and gross distortions from the MSM.

If the public doesn't buy it then Alito will sail through.

Scalia, Thomas, presumably Roberts and Alito would vote to overturn Roe. Kennedy, Stevens & Souter (I think Souter was already on the court) voted for Casey, and presumable Ginsburg and Breyer would vote to affirm Roe. So it would still be 5-4 pro Roe, unless the Four Horsemen can convince Kennedy (who almost went anti-Casey).

point and it should be shouted high and loud anytime someone claims that appointing Alito will lead to Roe being overturned:  there aren't enough votes, even with Alito.  

Will it make it more likely that perhaps, after the retirement of the next justice, Roe will be overturned?  Yes.  But we are, barring unforeseen circumstances, at least one presidential election away from the retirement of the next justice (I just don't see even Stevens retiring until 2009, though some have wondered if he's still enough of a Republican to retire with one in the WH).  So the country will have plenty of time to decide whether it wants this to happen through the electoral process (where the decision should reside anyway).

Snowe, Collins, Chaffee, Gregg, Sununu.  Tell me how they vote on Alito.  If they hold, the GOP holds.  Underneath all the noise is 1860 sectionalism.

And it will come down to class and privilege.  Will the descendants of the Brother Jonathans of 1776 vote against a Princeton man with Yale pedigree?  Smile.  Close and engage.

Each of these 51 votes is up for re-election at some point.  Many in tight races a year from now.  The negative polling that just the nuclear option showed before was enough to scare some senators away.  Now you still have the general public opposed to the nuclear option, and you have general disfavor of the Bush administration.  So the nuclear option is now seen as an unpopular move for the benefit of an unpopular administration.  Unless they can convince the public of this nominee, they will have a hard time gathering votes for the nuclear option.

Not pulling the trigger earlier was a big mistake for those that wanted to see it done, and makes it much more difficult now.

I think Alito will be successfully placed on the court.  However, this will peel off another one or two person of moderate Northern Republicans, who fear an erosion to the right of privacy and/or abortion rights.  So, it's a trade-off.  One good thing about Miers is that she didn't have a record.

These days it's harder to put pressure on some of those, given the lousy recruiting that's taken place.

Whether you blame Senator Dole for running the RSCC badly, or President Bush for having a bad year, it doesn't matter.  Republicans just have had a hard time getting good Senate candidates.

Would love to see the Dems go down this road. We have the votes to break it and with it the ability to confirm subsequent judges with only 50 votes.

There is no way McCain is dumb enough to side with the Dems on this one. Otherwise, stick a fork in his presidential ambitions. DeWine would benefit most from votes to break the filibuster and confirm Alito. Ben Nelson may look ok for re-election now, but a vote against Alito puts that seat back in play in deep red Nebraska. Dems should be careful, actuarial tables say that an 85 year old man (Stevens) only has another five years to live on average. He appears healthy and all, but there is at least a 30-40 percent chance he won't make it to the end of Bush's term.

Alito's record simply does not warrent the "extraordinary circumstances" to sustain a filibuster. So unless they find a bloody clown suit in his closet in the next eight weeks, consider Alito an associate justice.

Heave a big sigh, fellow conservatives. Imagine the justices a President Kerry would have sent up to replace Rehnquist and O'Conner. The ever accomodating GOP would not have had the guts to stop them on purely ideological grounds, the way Schumer and his fellow carnies are trying to do with Alito. So we'd be looking at a court with only two conservatives (Scalia and Thomas) and a moderate (Kennedy). That would be worse than any Halloween nightmare.

Lumping Judd Gregg and John Sununu in with Collins, Snowe, and Chafee is not fair.

Gregg is a solid conservative and has never (iirc) abandoned solid judges to this point.  Sununu, while newer to the Senate, hasn't flinched yet either.

I'm hoping/betting that Chafee will be pressured by the NRSC to stay in line, or at worst will just be required to vote on cloture but then vote against the nominee when we've got enough to confirm him.

I'm also hoping that Collins takes one for the team and provides cover so that Santorum doesn't get into too much trouble voting the right way (they are good friends).  Santorum will, of course, vote the right way, but it'll be helpful for him to have some cover from women senators.  (I hate identity politics, but they're there.)

Snowe has the most unpredictability for me.

I expect him to do so on this one, I do think, if he is smart (sometimes I doubt this in him) he will understand that strong leadership from him on this will look good for a presidential run.

I think strong leadership on this may also help him with the social conservatives he has gone out of his way to distance himself from.  This could be a huge bridge rebuilding step, especially if Specter plays games.

I actually don't think there's much to lay a glove on in Alito's record; if his name was Alberts instead of Alito, he'd be compared to Roberts, not Scalia.  His abortion votes don't make him a sure bet to topple Roe, and as an ex-prosecutor he may be Specter's kind of guy.  I think the Dems will go bonkers for a while but won't be able to muster 40 votes to stave off cloture, some Republicans may vote for cloture but against the nominee, a Dem or three support Alito, and Alito gets in with between 53 and 57 votes.

PS - There are documents to demand - Alito spent 7 years between the SG's office and Main Justice.  But the Miers/Roberts precedent should come into play:  demands for such documents should only be allowed to stall the nominee if the nominee has so little public record that the documents are the only available source of information.  Alito has authored about 240 published opinions, plus hundreds more that he joined, and that's even before you get to his 4 years as US Attorney and the cases he argued in the Supreme Court.

That this matters:

I actually don't think there's much to lay a glove on in Alito's record.

We are talking about Democrats here.

with Chaffee on the committee?  Ah, there lies the rub my friend.

good control of the hearings and let the dems run amuck.

I'm unconvinced that she can get the job done.

Ever since she ran for President, she has underwhelmed at every turn.

u r wrong. The only poll that matters to each Senator is the one from his home state with his re-election.  What Republican Senator who is for it will possibly be hurt?  Santorum?  Nothing will help him more than to keep Caey=pro-life in the news to split Casey, Jr's base in PA.  And I daresay a guy like DeWine is praying for the Constitutional option.

National polls from NYT and WaPo are just fun to laugh at.

With Specter already whining about having too many documents to look through while he takes what would usually be six weeks off for the holidays, I hardly think there will be much of a push for the other documents.

What are you talking about with the ever-accomodating GOP? If any pro-choice candidates had been put up, they would have been reamed. Heck, Miers didn't even get to the voting stage because she wasn't anti-abortion ENOUGH.

96-3 'Nuff said

...implying that smearing and distortion is just a Dem tactic. Both parties do that.

Seriously, just because someone may not be as hard right as you on the social issues, that doesn't mean that person is not a Republican. The majority of the Rep party consists of moderates, and so it's just nonsense to call a moderate a "Rep in Name Only". Just like you, those people support the tenents that form the foundation of the REp party: smaller gov't, state power, individual rights, reduced taxes, and fiscal responsibility.

that they stand for?

...got anything more recent? After the '94 switcheroo would be good.

Seriously, I'm not trying to attack your statement or anything, nor am I making a stab at the Rep party, but the Reps have given the impression of being anything but accommodating in recent years, particularly since taking control of the country. Every up or down vote on ANYthing seems to be based on hard-line, uncompromising religious ideals.

Looking to Wikipedia as an authority on any modern person, group, or idea to the right of Michael Moore is probably a bad idea.

He's 85! Many have speculated he's the next to step down, and to do so next June, so that next summer can be devoted to another nomination process just in time for the fall 2006 elections. If ever a purer referendum opportunity presented itself I am unaware - the mid-term election of a two-termer's second term. If nothing else, it's the single greatest factor forestalling lame-duckness.

I suppose it's possible, but Stevens just doesn't seem the type to purposely hang on just to the next election - if he's not stepping down, then he's simply decided to serve until natural expiration, as it were.

Yeah, I hope that never happens again. The Republicans tried to restore decency to the whole process by deferring to Clinton, and look what we get in return.

It's clear the far left doesn't play by any rules and will use whatever trick they can to get their way. And they clearly have a litmus test on abortion...even restrictions on abortion.

If conservatives continue to be polite and play by the rules when democrats nominate someone then we're going to get overwhelmed.

Are you suggesting Justice Ginsburg was unqualified, or that there was something else wrong with her such that the Republicans should try to reverse the election that President Clinton won?

Democratic Supreme Court nominee in the past 30 years that didn't get more than 90 votes.

We vote on qualifications, not ideology.  The Dems have opened the ideological litmus test box... and I'm afraid it won't be going away any time soon.

Unless I am mistaken.

The standard talking points are plastered all over this and other sites but I would say at the core would be socialism, entitlements, and redistribution of wealth just to name a few but they will never admit it. And btw if that is too extreme big government, excusive taxes, and a "lets make everyone equally miserable" attitude is bad enough

Here are two answers to that question liberals have given me recently:

1. Liberals believe our common humanity endows each of us, individually, with the right to freedom, self-government, and opportunity; and binds all of us, together, in responsibility for securing those rights.
   
2. That government should rule with the consent of the governed; that individuals have a right to life, liberty and property; and that all citizens have equal rights under the law.

without answering to the people.  That is the national debate that needs to happen.  We aren't appointing judges who believe that unborn children have a Constitutional Right to Life.  That would be a conservative judicial activist.  We are nominating people who believe the Constitution means what it says and nothing more.  Thus contentious issues that are left alone in the Constitution should be left up to voters and their representatives.  Liberals have long argued that instead of electing liberals to pass their agenda, the courts should do it for them.  Whether it has been on abortion, the death penalty, same-sex marriage, etc.  These issues should be in the legislatures, not the courts.

Wasn't she chief counsel for the ACLU?

President Clinton won the election.  He was within his rights to appoint someone as liberal as he wanted.

I'm uncomfortable with people saying that Republicans were "weak" or "rolled over" on Ginsburg.   It reminds me too much of what's being said on the left: that if only we'd get meaner, like the other guys, we'd win!

Ginsburg is a model of how Supreme Court nominations should proceed.  Ginsburg's views might be distasteful to Republicans, but that rightfully wasn't an obstacle to her confirmation.  There is no ideological qualification for the Court.

I know Democrats won't give the same deference to Republican nominees, but that doesn't make it right for them to fight as they do, nor does it make it right for Republicans to start acting like the Democrats.

my prediction-final vote- 53-47.  Chafee, Snowe, and Collins will vote no.  Specter will be on board.  He know that he can be stripped of his chairmanship as easily as he can get it, and knows Bush saved his butt last year.  We get Ben Nelson on board too.  He's a conservative Democrat up for reelection in Nebraska next year.  If they filibuster, DeWine, Warner, Graham, and McCain will be for the nuclear option.

...what does that have to do with my comment on the "RINO" label?

You should have stopped at "Yeah". But the "so" is the point.

Well put. I think the stuff you say about the libs in the second part of the message MAY be a matter of perspective, but I'll have to ponder that a bit.

I'm not sure about the socialism comment, and I think the "lets make everyone equally miserable" statement is a matter of perspective, but OK, the rest is fine. My main point in asking is that I see too many people demonize the other side without actually thinking about it, but you've evidently considered the issues. I'd offer that, though, that big government isn't necessarily just a democratic tenet anymore...

I'm confused about the two bullet points you list, though. Those are good things to belive in, aren't they?

We would expect, surely, that all nominees believe in the Constitution.  This may seem so elementary that it is not worth stating, but it is an "ideological qualification."  For instance, a monarchist would not be qualified.  Now, if a nominee has a view of the Constitution which renders the Constitution so flexible that it has no meaning, that nominee also would not be qualified.  So, for example, if a nominee believes that the power to regulate interstate commerce allows Congress to make a law against possessing a firearm within a certain distance of a school because the firearm traveled across state lines when it was manufactured and sold (see the Lopez decision from the Supreme Court striking down this law), then perhaps that nominee is not qualified.  Simply because one has a fine legal mind, or long experience on the bench, does not mean one is qualified for the Supreme Court.  It is necessary to consider the substance of a nominee's interpretive reasoning.  That is to say, we must require a certain intellectual allegiance to the Constitution.  The permitted scope of that allegiance might be broad, but not so broad as to encompass, say, the "living Constitution" idea.

...in the last 35 years, I think only 3 have been Democratic appointees -- and one of those was a woman, and another was the first black appointee, so I don't think a high number of pro botes would be unexpected. The rest were appointed by Rep presidents. I just looked all the up, so correct me if I'm wrong. If I'm not wrong, then I don't really think there's enough of a sample size to know how Reps would treat a Dem appointee.

At any rate, if the Dems are using an ideological litmus test, it's because the hard-liner Reps have forced them into that position by using abortion and gay rights as the litmus test for the candidates they place in whatever position. Look at how Miers was reamed for possibly not being anti-abortion enough, and how evens Roberts stirred up some controversy when it was revealed that he had something to do with defending a gay client way back when.

Any candidate of either party that has even the slightest taint of pro-choice or pro-gay rights attitude on them is blasted on ideological grounds by the far right--even in a judgeship, where hopefully such views would not come into play; other credentials are generally treated as secondary. That narrow ideology does not reflect all of the country, and because the far right seems to be blatantly making decisions based primarily on social issues, I don't really think you can blame the Dems for trying to make sure that the court isn't stacked with judges who are going to rule based on that same ideology.

'We would expect, surely, that all nominees believe in the Constitution.  This may seem so elementary that it is not worth stating, but it is an "ideological qualification."  For instance, a monarchist would not be qualified.'

A person who thinks the Constitution is a pile of nonsense is still capable of interpreting it correctly, so no, I disagree with that.

As for the rest, you seem to be saying there's no room between a Justice being wrong, and a Justice being unqualified, so I can't agree with that, either.

That's why I put "Re: wikipedia sig" in the subject line of my comment.

First, Dems "borked" Bork out of the blue in the 1980s.  It was the first blocking of a SC justice on ideological grounds.  After that, Republicans still gave over 90 votes to all Democratic nominees including Ginsberg who was an ACLU lawyer who had written that prostitution was a Constitutional Right.  They believed in the old model.  There was hope that Dems would return from the ideological litmus test after the Republicans had shown the ability to vote on qualifications instead of ideology.  Instead, they started unprecendented filibusters of lower court nominees and gave only half of their votes to the uber-qualified Roberts (who deserved 100 votes based on his qualifications).  Now that they are repeating that effort with Alito, it is safe to say that the ideological litmus testing is going to be with us for a while.  This will encourage stealth nominees and discourage brilliant legal minds from writing or talking about controversial issues.  That is sad.

Second, "it's because the hard-liner Reps have forced them into that position by using abortion and gay rights as the litmus test for the candidates they place in whatever position" is ludicrous.  Have you noticed that the Secretary of State, Secretary of Education, and a majority of the administration's cabinet is pro-choice?

Third, judicial nominations are not about abortion or gay marriage.  They are about judicial philosophies.  Most "in the know" expected Miers to be an anti-Roe judge.  In fact, it seems that was the only reason the President nominated her.  Nevertheless, she ran into a major wall because she did not have a record of a consistent philosophy of judicial restraint.  If a majority of the SC had a philosophy of judicial restraint then issues such as abortion and same-sex marriage would be decided by voters in the 50 states similar to how we deal with the death penalty now.  But alas, Democrats wouldn't be happy if the voters had their way on those issues.  So they continue unprecedented obstruction to qualified judges.

I'll understand when they oppose someone who has said that the unborn deserve a Constitutional Right to Life.  That would be out of the mainstream.  But believing that the Constitution doesn't mention abortion isn't a sign of extremism, it's a sign of literacy.

But again, I'm not sure you can really say how Reps would treat a Dem appointee, but it is so rare. And the recent filibusters aren't unprecedented -- Clinton's lower-court nominees were hounded mercilessly by Rep filibusters. It's not a new thing.

The abortion litmus test is not ludicrous. You have to agree that those on the far right, in terms of social issues anyway, support candidates based only on a narrow ideological view. Sure many in the Rep party disliked Miers for valid reasons: She wasn't qualified. Just as important, though, even judging solely by the comments on this blog, was that she wasn't "conservative" -- the concern being that she wouldn't vote the right way on Roe. If her views on abortion weren't at the top of the far right's list, then why was Dobson brought in say (at first), "It's OK -- she'll vote the right way."

The Sec of State and some others may be pro-choice, but ELECTED politicians who openly express any empathy for choice or gay rights are blasted by the right. That happened to Specter in his own state a little bit ago, if I recall. And your statement that the Prez may have nominated Miers only because she was anti-Roe supports my assertion -- if that was her only qualification, then who do you think he was trying to appease with his decision?

But alas, Democrats wouldn't be happy if the voters had their way on those issues.  So they continue unprecedented obstruction to qualified judges.

I agree with you that such a philosophy is needed. However, the hard-liners (ok, the evangelicals) are putting the Dems in the position of trying to prevent the court from being stacked with people who will rule on ideology. The evans want Roe overturned at all costs, and they want unmarried gays. They want judges who are going to rule with those views in mind. To be honest, I don't think most of them have thought this through as well as you: They think that overturning Roe, for example, will outlaw abortion, whereas it will really just turn the decision over to the states.

And again, the obstruction is NOT unprecedented.

In sum, you're absolutely right about having a court philosophy based on judicial restraint. However, the far right (Dobson and others with much influence) has made it clear that they want people on the court who will be anti-abortion, anti-gay, etc. -- and that puts Dems in the position of making sure (somehow) that that does not happen.

I'll understand when they oppose someone who has said that the unborn deserve a Constitutional Right to Life.  That would be out of the mainstream.  But believing that the Constitution doesn't mention abortion isn't a sign of extremism, it's a sign of literacy.

Totally agree.

Didn't see that.

You think a smart nominee who believes the Constitution is "nonsense" is still qualified.  Having the intelligence to interpret a document correctly and actually doing so are quite different.  Having the discipline, loyalty, and selflessness to apply the principles of the Constitution, regardless of personal opinion, is not something which comes from intelligence, and yet these virtues are required in a good judge.

I'm not sure if you are familiar with Sherlock Holmes, but your argument is akin to stating that Prof. Moriarty was very intelligent, and so he would have made a good detective.  He was an arch-criminal, though, and this was not because of a defect in intelligence.

As for your second statement, being wrong does not alone make a nominee unqualified.  But being so grossly wrong that the opinions violate the Constitution does make a nominee unqualified.

Let's not forget you are indeed posting on Redstate, Openmind.  You may not get much in the way of an Amen over here.  But it's nice to have another contrarian in the group.  But what's good for the goose is good for the gander.  Would Zell Miller be a DINO?

...that Zell Miller represents the majority of the Dem party. Either way, interesting question.

However, I'm still not sure why you would think "RINO" is appropros. The term, as I've seen it, is generally used to refer to socially moderate Reps. If I'm wrong on that, correct me. If I'm not, though, then I would think that anyone who supports the basic Republican tenets -- which deal with government rather than social issues -- can be considered a Republican.

The problem is that I see the term "RINO" being used more and more to basically discount anyone whose views, particularly those involving ideology, do not match those of the folks on the far right of the party -- as if the party must be of one mind on every single issue. The party is founded on a set of principles, such as fiscal responsibility, smaller government, individual rights, etc. etc. People within the party can support those Republican principles while still differing on other issues, and that does not make them any less Republican.

I would think that RedState would be the perfect place to post this. The only reason the post would be criticized, I'm guessing, is if the party has indeed become so polarized that anyone who doesn't share every single view of those on the far right is now considered a lefty.

"Clinton's lower-court nominees were hounded mercilessly by Rep filibusters"

That is an inaccurate statement.  Clinton had many nominee's that were not referred out of committee which I think was wrong of Republicans.  But it was not a filibuster.  It is in the power of the majority to bottle up nominees in committee.  Dems had that power for 2 years between 2000-2002.  But because of their obstructionism, they lost seats in places like GA.  So they can't do that now.  The partisan filibuster of a nominee is unprecedented.

Next fallacy:

"ELECTED politicians who openly express any empathy for choice or gay rights are blasted by the right."

The first voter-initiated Civil Union Bill was signed by Gov Rell of CT (R) who is one of the most popular R GOVs in the country.  There are numerous pro-choice Republicans including (off the top of my head) Senators Specter, Chafee, Snowe, Warner, Murkowski, Stevens, and Isakson along with Mayor Guiliani and GOV Schwarzenegger.  If you want to talk about litmus tests look into how the DNC treated Governor Casey (D) of PA at the 1992 DNC convention.  The pro-life GOV was not allowed to speak.  Further, many pro-life Ds have been forced to switch their position over time including Al Gore, Dick Gephardt, Robert Byrd, Ted Kennedy, and others.

"To be honest, I don't think most of them have thought this through as well as you"

I think you sorely underestimate many evangelicals and other pro-lifers.  Without being rude, I'd suggest you take some time to talk to or read some of the many intelligent pro-lifers (and some pro-choicers) who oppose Roe and why.  I think there is less ignorance then you suppose.  I hope these debates are returned to our elected legislators so that we can hound them from whatever side we are on to enact what we think is the right thing to do.  But first, we must put judges on the Supreme Court who have a history of following the Constitution instead of their own views of what is "right and wrong."

From everything I have read, Judge Alito fits that bill just as Judge Roberts did.  I don't really know how either will rule on Roe, but I see their judicial philosophy as one of restraint and respect for the limited nature of the Constitution.  That contrasts with O'Connor and the left 4 on the SC who seem to rule how they want things to be instead of what the Constitution says.  That is the first priority and Alito is a step in the right direction.

"do not match those of the folks on the far right of the party"

Being pro-life and/or against same-sex marriage is not the "far right" of the party.  It's the mainstream of the party.  Pro-lifers make up about 45% of the country depending on the poll.  Those opposing same-sex marriage number closer to 60-70% of the country.  In general, I'd leave the "far right" moniker out of your vocabulary if you want to stay around for awhile.

Addressing your question on RINOs.  I think cases like Chafee and Specter are similar to Zell.  Chafee is an R because he is honoring his father's wish.  Specter switched parties to run for office in Philly as a youngin' as a strategic decision similar to Mayor Bloomberg of NYC.  Those are really Republicans in Name Only.  Snowe and Collins are just the last of a dying breed of liberal Republicans.  Moderates such as McCain, Warner, Murkowski, and DeWine are less common.  But that is true in the D party as well.  

adam c,

would you really kick someone out for using the phrase "far right" if thats how they see it?

I'm not trying to start anything; I'm just concerned at what is appropriate or not. I understand the concept of trolling, but "far right" is subjective. I mean I had a diary suggesting Sen. Kennedy for SCOTUS. Obviously, I meant it sarcastically and for entertainment, but what if it had been taken the wrong way? Just curious and mildly concerned. Thanks

It generally depends on the poster.  Those who are talking in jest, have long posting histories as valued contributors, etc have much more leeway.  Non-republicans have much less leeway.

My general principle is to let everyone into my home.  As long as they don't track mud or insult my mother, they are fine.  This was just some advice to a non-Republican that calling mainstream Republicans "far right" might lead them down a path to being booted.  If a poster goes around posting "that's far right" on every thread, we'd ban them.  So I guess the point is that the situation matters.  I encourage the non-Rs to tread carefully in our home as I hope we would in theirs.

Reps kept at least a third of Clinton's appointees from a vote. Dems have filibustered what, like four of Bush's? To be honest, I'm not sure that tactic has been used at the Supreme Court level before, but the Dems have few tools left to them right now.

As for you claiming that it's a fallacy that pro-choice folks are blasted, well, I don't know what to say to that. However, Guiliani and Schwartz aren't exactly held up by the far right as model Reps. Nor is Specter. If memory serves, Specter was attacked by a series of ad campaigns in his home state after he made certain pro-choice statements, and people called for him to retract or step down.

A quick google search turned up this stuff about Specter's troubles:

http://www.cnn.com/2004/ALLPOLITICS/11/07/specter.judiciary/

http://www.nationalreview.com/comment/fowler200404010903.asp

And I have to keep returning to the hubbub over whether Miers and Roberts would be anti-abortion and anti-gay. Again, Miers' abortion and evangelical views were a huge part of the administration trying to sell her to the far right. Remember how they trotted Dobson out to support her, and how they kept stressing that she comes from an evangelical background? What was all that about, then? Here's a quote from the Washington Post: "Her attitude toward abortion has become a central issue in the controversy surrounding her rocky nomination to the court."

Here's the article: http://www.washingtonpost.com/wp-dyn/content/article/2005/10/18/AR200510180
0715.html

And as for Roberts, a quick google search turned up this article discussing Christian concerns over gay-rights work he had done:

http://www.christianitytoday.com/ct/2005/131/41.0.html

But first, we must put judges on the Supreme Court who have a history of following the Constitution instead of their own views of what is "right and wrong."

Yes, we do. However, the religious right is clearly trying to stack the court with people who WILL vote according to the evangelical sense of right and wrong. They make no secret of it, and they've scared many politicians into going along with them.

So I don't disagree with your points, but I do have to reiterate that whereas the Dems are opposing many of the candidates on ideological, I believe they have been forced into that position because of the religious right trying to fill the SC with ideologues.

I'm not Republican?

on what poll you read. A google search turned up a wide range. Which one are you citing?

Besides, I wasn't classifying pro-lifers and anti-gay rights folks as the far right. I was using that label to refer to those folks for whom those are the only issues, and for whom those issues decide whether or not they support a candidate. Nor was I using the term offensively -- I was simply using it to describe a group that I think is NOT in the mainstream of the party. If your opinion on that is different, fine, but you shouldn't take offense by it. If you actually DID take offense by it, though, I find that interesting. I also apologize.

If the only thing that mattered to conservatives (and I again say you should probably drop the "far right" moniker to describe pro-lifers) was abortion and same-sex marriage, they would have supported Miers.  Those who care only about abortion (i.e. Dobson) did support her.  But the vast majority of the conservative movement believe that we need judges who will not place their views over that of the Constitution.  Alito, Roberts, Thomas, Rehnquist, and Scalia fit that mold.  We need more of them.

As I said above if a nominee argued that the Constitution requires all abortions to be illegal, I would dissent as would most Americans.  But for some reason, it is considered extreme by the left to think that the Constitution doesn't mention a right to abortion on demand.  If the President appoints an extremist, then they deserve to be opposed.  The problem is the bastardization of the word "extremist."  Democrats are trying to characterize any conservative as an extremist.  That is unacceptable and it's not evangelicals nor pro-lifers fault.

Your view of pro-lifers is really sad to me.  I hope you get a chance to interact with more of them so you can realize that they are not an ignorant block of voters who don't care about judicial philosophy or other issues.  They are in a lot of ways the descendents of the anti-slavery movement and the Civil Rights movement.  Both of which were started by religious organizations and spread by appealing to people's conscience.  The idea that pro-lifers are somehow a radical force in the country is quite disturbing to me.

Finally, I repeat that outwardly pro-choice Breyer and Gingsberg recieved over 90 votes in the Senate including almost every pro-life Republican.  Democrats can't vote based on qualifications instead of ideology, which is a problem for the country.  If they fit Alito on ideological grounds it will solidify the idea that it is acceptable to do so.  And we won't get out of that rut for generations.

your continuous attack on pro-lifers and religious voters.

...that's exactly what I mean with my other post about "RINO"s. You can't be considered a Republican unless you're religious and pro-life. Regardless of whether you support the core Republican tenets of fiscal responsibility and so on, if you're not pro-life, you're not a Rep.

That's just not true, and it's kind of offensive.

Second, I'm not attacking pro-lifers or religious folk. I have nothing against them as long as they don't try to impose their views on me. My problem is with people who vote solely on that narrow social agenda, while at the same time calling me a lefty because I don't vote the same on those issues.

As I support gay rights, I'm not finding much offensive here.  But calling those who oppose same-sex marriage "far right" includes Sens. Kerry, Reid, and Kennedy along with President Clinton and every national level politician to my knowledge.  That is why it seems weird to me that you would consider it "far right."  I recommend "social conservative" if you don't want to offend people.

Here's a slew of abortion polls.  The general finding has been consistent over the past decade or two.  51-55% pro-choice.  41-45% pro-life.  A plurality of Americans support the following (contradictory) things:

• Partial birth abortion bans
  
• Parental notification laws
  
• "More restrictions"
  
• "Harder to Get an Abortion"
  
• Roe v. Wade

And if Roe was ever overturned there is a broad swath of compromises that are possible.  Most likely, the plurality position of "rape, incest, and life of the mother" would remain legal while abortion on demand would be illegal in most states.  That would cut abortions by over 90%.

So I'm not exactly getting where being pro-life is extreme or "far right."  It is a socially conservative position, but it's a rather common one.

I consider many non-religious and pro-choicers Republicans.  But those who insult relgious people and pro-lifers by calling them the "far right" are often not Republicans.

"I have nothing against them as long as they don't try to impose their views on me"

Does this mean you oppose the forced secularization of schools and all public institutions?  Many religious people feel that seculars have forced their views on the country over the years.  You call their agenda "narrow" but they have watched a generation of court judgements try to revamp society and culture against what they think is their way of life.  It's gotten to the point where "Congress may pass no law establishing a religion" somehow means that you can't have a moment of silence in school or a prayer before a football game.  You may see that as "narrow" but it is important to others.

When the left stops trying to force secularization on the country, I bet the right stops fighting so hard.  Most religious conservatives weren't active before the 1970s era when they started feeling threatened by the governmental endorsement of rapid secularization that included but was not limited to Roe v. Wade taking away legislatures right to regulate the safety of unborn children.

...you still don't see the ideological litmus test prevalent in Republican nominations? Did you read those articles?

And remember, Dobson only supported Miers initially. She ended up being not "conservative enough". Her lack of credentials helped, but the center of the argument for many was her religious views. You really don't see the push by the evangelicals to elect judges who will vote based on Christian ideology? It's not a secret. I can dig around for more articles, if you like.

And no, the abortion and gay-rights issues (and others) aren't the only things that matter to conservatives -- not to those in the mainstream. A very vocal minority, however, hold those issues as primary, and they have a lot of power over the politicians. I mean, I've argued with some of them on this blog.

Finally, I have nothing wrong with pro-lifers, as long as they don't try to impose their views on me. My problem is with people for whom abortion, marriage, etc. are the ONLY issues of importance, and who denigrate anyone not sharing those views as non-Republican or as RINOs; those are the ones I'm calling the "far right", not as a deragtory term, but as a reflection that I don't think they represent the majority of the party.

I DON'T have a problem with pro-lifers and same-sex-marriage opponents. Like I've said in all my recent posts, my problem is with people for whom those are the ONLY issues of importance, and who subsequently characterize Republicans who don't share those views as "RINO"s. Those are the people I'm calling the "far right", and once again, it is not a derogatory term, but an indication of my belief that they do not represent the majority of the party. If you disagree with that, then I would be surprised.

...their opinions are narrow. I said the range of issues that are important to them when it comes to politics is narrow. There's a huge difference.

Do you really want to get into school prayer and secularization here? Because I could easily argue that the alternative is to promote one particular religion or belief on others in a public forum.

"If the numbers drop below that at tradesports, buy all you can and don't blame me if you lose"

Love to know how that works. I have a strong view but dont know how it works.

What's that mantra about Wash. DC Republicans never letting an opportunity pass to snatch defeat from the jaws of victory?  An oversight in your analysis is the assumption that our Majority Leader Frist would actually have the ..jewels(ahem) to go 'Nuclear'.  Even if his staff reached the same number counting conclusions as you so eloquently opined, sadly I'm, not convinced Sen. Frist would authorize a changing of the judicial filibuster rules...it would simply be too decisive, too fair, too just for our spineless leaders to embrace.knowwhatImean?

But one can always hope right?

where social conservatism will be debated.  But one thing I've learned from talking with many SoCons is that while the left generally sees secular as neutral, social conservatives see it as being enforced on them as an ideology.  In France, government enforced secularism has almost ended religion there.  I geneally agree with you but I do not see where that "establishes a religion" and thus don't find it unconstitutional.

I apologize if I've been harsh.  We have a history of people posting here acting like "moderate Republicans" and then proceeding to bash the "far right," "the religious right," and the "Party of Dobson."  Those words are flags that attract editor attention when new users are throwing them around.  

Thanks for answering my questions.

Our currant administration has proven to be for big government and spending. Hopefully we can change that with the next administration fiscal responsibility and smaller government is good for us all IMHO.

The "Lets make everybody equally miserable" comment goes to the redistribution of wealth vs. the personal reasonability and individual achievement arguments.  

As for the two quotes I included them to show that originally my two liberal friends and their party had good intentions but I feel the new leaders of that party have abandoned those principles for a more radical activist approach and a "lets hate Bush" agenda

personal responsibility

Even more precisely, the Third Circuit is based in Philly.  Judges of the Circuit Courts of Appeal are generally spread out wherever federal district courts exist.  The Eleventh Circuit, for example, is based in Atlanta but its judges reside in Tallahasse, Tampa, Orlando, Miami, Jacksonville, as well as various cities in Georgia, and Alabama.

Judge Alito resides in Newark, per the Third Circuit judge's directory.

RINOs are not just social liberals.  They're big government, gun contol, soft-on-crime, enviro-wacko liberals in sheep's clothing.  In my very blue state, the RINO governors we had in recent vintage were pro-abortion, big-spending, anti-death penalty "stand-for-nothings" that besmirched the proud reputation of the Republican party in the Land of Lincoln(R).  We Illinoisans are lousy with RINOs and I for one have had enough.

Wanna decent litmus test for RINOs?  See how many planks in the party platform they are willing to walk.