Gang of 14 Ensures Senate's Approval of Alito

The press is jumping on Bush's newest Supreme Court nominee Samuel Alito as being too conservative. MSNBC today headlines, "high court pick likely in for a fight." The normally reserved Senate Majority Leader Bill Frist is quoted as saying, "If Democrats want a fight, they'll get a fight." The reason behind Frist's tough talk? The Gang of 14.

The Senate is currently split with 55 Republicans, 44 Democrats, and 1 Independent that generally votes with the Democratic block. The Constitution requires the "advice and consent" of the Senate meaning that the Senate must approve any Presidential nominee to the Supreme Court. The approval requires only a majority of votes which the Republicans have, even with a couple of dissentions. In the past couple of years a popular tactic by Democrats has been to filibuster the approval process. The filibuster is a technical move by which a vote on a particular issue can be blocked. Filibuster can only be stopped by another technical process called cloture. Cloture requires 60 votes (sometimes referred to as a super majority) rather than a simple majority vote.

The resulting effect of all this is that 60 votes may be needed to require a vote on a nominee even though the nominee has the 51 votes (or 50 votes plus the Vice President) to be confirmed. A number of people, mostly Republicans, thought this wasn't very fair. I agree in this instance with the Republican majority. The manner in which the Senate provides advice and consent is through a vote. In the event a nominee is not voted on then the Senate is shirking its Constitutional role in the process. To further their agenda, the Republicans threatened the Democrats with what became known as "the nuclear option." The nuclear option was basically this: in the event the Democrats refuse to allow a vote on a nominee then the Senate will vote to change the rules of the Senate (which requires only a simple majority vote and cannot, to my understanding, be filibustered) and disallow the use of the filibuster in the Senate approval of a Presidential nominee.

This would ensure that only a simple majority is needed in the approval of any Presidential nominee. Numerous Senators, both Democrats and Republicans, were very hesitant to invoke the nuclear option, though. They were very wary of changing the Senate rules, especially along such partisan lines. As a compromise, 7 Democratic and 7 Republican Senators reached a compromise. This compromise is known as "The Gang of 14." The compromise basically states that the 7 Democratic Senators will not filibuster a Presidential nominee and the 7 Republican Senators will not vote for the nuclear option. There are a couple of catches to the agreement. The most obvious is the old "I'll keep my promise if you keep yours." In other words, if any of the Democratic Senators vote for filibuster then the Republican Senators will in turn vote for the nuclear option virtually guaranteeing its passage.

The second big catch is the wording of the compromise itself. The 7 Democratic Senators are allowed to filibuster a Presidential nominee "under extraordinary circumstances." The compromise clearly states that what constitutes extraordinary circumstances is determined by each signatory's "own discretion and judgment." The fear is if Democratic Senators determine that something is an extraordinary circumstance and the Republican Senators disagree then the Republican Senators will view the Democratic filibuster as a violation of the compromise and will vote for the nuclear option.

The bottom line here is that this tenuous agreement rests entirely on the trust that each group of Senators has for the other. If a Democratic Senator filibusters Alito then the Republican Senators will certainly invoke the nuclear option if for no other reason than to save face in light of the agreement. The Democratic Senators know this. They also know that disagreeing with a specific view (or views) that a nominee holds is not an extraordinary circumstance. An extraordinary circumstance would be something that runs contradictory to the Constitution or a criminal conviction or something that makes the nominee unfit for the job. Disagreeing with a viewpoint doesn't meet this high burden of proof and Alito's approval is virtually guaranteed as a result.