Puzzle me this, oh spirits in the myst, what would good Senator Johnson have done if the confirmation of Samuel Alito today had come down to his vote? The WSJ OpinionJournal has breakdown of Democratic votes, and notes that all four Democratic Senators who voted for Alito's confirmation came from states that Bush carried. But notice that North Dakota's delegation split, with Conrad who is coming up to bat in this year's election voting yes. The fact that the Republicans had a clean 54 vote majority made it relatively painless for Johnson to cross the floor on this one. Of course Johnson may have genuinely believed that Alito should be confirmed. But its harder to imagine him voting that way if Daschle were still leader of the Senate, and the Democrats had had a chance of defeating Alito in a floor vote.
There is good news and bad news in the two votes this week. The 72/25 vote for cloture indicates that the filibuster has collapsed as a Democratic instrument for judges. This may have something to do with the filibuster issue in the Thune/Daschle race, but more directly it is a result of the gang of 14 deal on the filibuster. That deal is now confirmed to be what I said it was, a near term victory for Republicans. But it is a long term victory for the Constitution. If the filibuster had succeeded, the confirmation process might well have ground to a halt.
Unfortunately, the fact that all but four Democrats voted against Alito today might mean the same thing the next time that a President has to send up a nominee to a Senate dominated by the opposite party. I noted this very interesting chart from the Washington Post in an earlier blog. It indicates that, on a number of issues, Republican and Democratic appointees dependably come down on opposite sides. There were really no grounds for opposing Alito that would not apply to any Republican appointee. Its difficult to see how a Republican President and a Democratic Senate could reach a compromise on a nominee. The same would apply to a Democrat in the White House if the Republicans begin voting in the same partisan way as the Democrats just did.
The obvious solution to this problem is the sort of decorum that the Republicans observed when they largely supported Ruth Bader Ginsburg and Stephen Bryer. I had the chance to talk to Senator Orin Hatch about the Bryer nomination. He knew of course that Bryer would be a vote to uphold Roe, and that Bryer would side with the liberals on the court on most issues. But he thought that, absent something obviously disqualifying in a nominee, the President should get who he wants. Given the Democrats partisanship on Alito, I think it will be hard for the Republicans to keep that same decorum in the future. They would run the risk of endorsing the rule that any President is entitled to appointees that the Democrats approve of. This does not bode well for the future of the appointment process.