Tuesday, Nov. 1, 2005 | 8:39 a.m.
WASHINGTON -- With President Bush's nomination of Judge Samuel Alito for the Supreme Court, Senate Minority Leader Harry Reid could find himself back in the middle of a gritty fight over judicial nominations and the "nuclear option."
The showdown over Alito will challenge the Nevada Democrat's ability to keep Democrats in line, said George Washington University Law School professor Jonathan Turley.
"This is not just a test for Alito, but a test for Harry Reid," Turley said. "This is Harry Reid's moment to either prove his mettle or his undoing."
Viewed as a conservative jurist, Alito could face a Democratic filibuster, and the Senate could tumble back into fight similar to the one last spring.
In May, the Senate narrowly averted a partisan meltdown over judicial nominees as Democrats threatened to block a handful with filibusters. The Republicans countered with the so-called nuclear option, a plan to change Senate rules -- and years of tradition -- to override the filibusters.
An agreement between seven Democrats and seven Republicans -- the "Gang of 14" -- ended the issue. The Republicans vowed not to invoke the nuclear option if the seven Democrats agreed not to filibuster except in "extraordinary" circumstances.
The question will be if the Alito nomination fits such a definition.
Reid, speaking on two Sunday morning talk shows, would not rule out a filibuster. On CNN, he said the appointment of Alito "would create a lot of problems."
"That is not one of the names that I've suggested to the president," Reid said. "In fact, I've done the opposite."
Reid said Monday it was premature to comment on whether the Democrats would filibuster. But he was irked that Bush had not consulted Democrats and ignored "the value of diverse backgrounds and perspectives."
"President Bush would leave the Supreme Court looking less like America and more like an old boys' club," Reid said.
The Senate fight in May was bitter. Republicans said the Democrats' block on nominees usurped the Constitution and called the GOP proposal, which would have reduced the number of votes needed to end a filibuster from 60 to 51, the "constitutional option."
Democrats called the move an abuse of power that would end the Senate tradition of collegiality and forever sour the working relationship between the two parties.
Sen. John Ensign, R-Nev., called for a "fair and dignified confirmation process" on Alito.
Senate Judiciary Committee Chairman Arlen Specter, R-Pa., did not seem overly concerned Monday that a filibuster could lead again to threats of changing Senate rules.
"I'm always concerned about a filibuster, but Judge Alito's record hardly measures up to the standard the Gang of 14 had of extraordinary circumstances," Specter said at a news conference.
If the fight over Alito culminates in a Democratic filibuster, it's not clear the Republicans would have the votes to launch the nuclear option.
Some moderate Republicans would resist because it could mean the "mutual destruction" of both parties, Turley said. Experts say the nuclear option could alter the parties' working relationship and their ability to handle the Senate's work.
Liberal groups who announced opposition to Alito said they planned to lobby moderate Republicans, and argue that Alito was far too conservative to replace Justice Sandra Day O'Connor.
While it's too early to talk filibuster, Democrats cannot rule it out, said Elliot Mincberg, general counsel for People for the American Way.
"There is no doubt, based on Judge Alito's record, that he is just what the far right wanted," Mincberg said.
Conservatives argued that Reid would be out of bounds if he launched a filibuster.
Alito will get at least 70 votes, predicted Jan LaRue, chief counsel for the Concerned Women of America, a conservative group that advocates bringing biblical principles into public policy.
If it came to a filibuster, the GOP would prevail in using the nuclear option, LaRue said.
"This should have been dealt with then, but it wasn't," LaRue said of the May showdown.
But she also stressed that conservative groups want to avoid another showdown, if possible.
"We want a dignified process and a vote," LaRue said.
Conservatives are not eager for the nuclear option to be used because it could be damaging to the Senate, said Tom Fitton, president of the conservative group Judicial Watch.
The fight will not go that far, Fitton predicted, describing Alito as more moderate than liberals give him credit for and "equally conservative" as John Roberts. Fitton predicted seven or eight Democrats will vote for Alito.
If it came to a filibuster, Republicans would override it with the nuclear option, he said.
"It's fair to say that from a conservative perspective, it is an abomination for a nominee to not get an up-or-down vote in the United States Senate," Fitton said.
Benjamin Grove can be reached at (202) 662-7436 or [email protected].
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