LieberDem Addendum

Say that five times fast...

As I indicated in the comments section of Dan's Alito post, Dan expressed many of the thoughts that I have been having over the past couple weeks about the Alito vote. Specifically, I strongly disagreed with the implicit assumption that Joe Lieberman could have somehow stopped Alito from being confirmed.

The sad truth is that there was no way for the Democrats to stop Alito from making it to the Supreme Court in this Congress. Had Democrats filibustered Alito, the Republicans would have sought the nuclear option. Bill Frist wanted to pursue that option during the showdown over appeals court judges in the spring of '05, and had enough of his caucus ready to back the measure to push it through (only 3 GOPers - McCain, Chafee, and Snowe - openly opposed the nuclear option). By mid-May, Frist and Reid had given up the pretense of seeking a compromise, and each leader was committed to lead his caucus down the road that would have ultimately ended with the nuclear option. Frist was, of course, only prevented from going down that path by the May 23 formation of the Gang of 14, of which Lieberman was a member.

And for those who say that the Gang of 14 has done nothing to stop Bush nominees, I refer you to the cases of circuit court nominees Henry Saad (forced to withdraw his nomination due to Gang resistance), William Myers (DOA in the Senate due to Gang resisitance), Terrence Boyle (nomination has been held up indefinitely due to Gang resistance), and William Haynes (ditto). The circuit courts are every bit as important as the Supreme Court, since the vast majority of major federal cases are decided at that level. So the Gang of 14 has hardly been a rubber stamp for Bush nominees, and its preservation has served a very important purpose.

I'd like to use an analogy with military strategy and history. Say that a defending army is faced with the approach of an invading force, setting up a battle over a fort that clearly has great strategic importance for both sides. The defending army realizes quickly that they will almost certainly lose the battle to defend the fort, even if they resist the invading army with all their might.

The defending army is faced with two choices at this point:

1. Stay and fight to the end, with the final result being the loss of not only the fort, but also much of their ability to fight in the future.
2. Retreat from the fort to a more strategically favorable position, thereby conceding the battle (and with it control of the fort) to the enemy, but also ensuring that their army retains its ability to continue the war.

Now, many would undoubtedly prefer option 1. It is the option that appeals to bravery, heroism, and other romantic ideals. But the smart military strategist will choose option 2. It might appear unseemly, even cowardly. But it's the strategy which ultimately provides the best chance to win the war. It's the strategy that George Washington took with the British - avoid direct confrontation unless victory seemed likely, even if it meant keeping his army in perpetual retreat for long stretches of time.

It might not sound like a courageous strategy, but it was obviously a smart one. The British eventually began wearing down, and changes in public and international opinion brought an infusion of energy and manpower to the American forces. Washington then began fighting (and winning) battles on his terms, and the tide of the war turned decisively in his favor. Great leaders, both in the military and in the civilian world, have always known that discretion is the better part of valor.

Such was the battle over Sam Alito. The battle was admittedly major, but it was not decisive; it was Wagram, not Waterloo. The four more progressive SCOTUS justices will continue vote to uphold progressive ideals, and Kennedy will be there with them on most major progressive issues as well. Kennedy's has consistently voted to uphold Roe v. Wade, meaning that the replacement of O'Connor with Alito did not spell doom for abortion rights. Throwing all the king's men into the fray over Alito would have ultimately accomplished nothing, and would not have changed the final outcome.

Odds are that there will not be another Supreme Court vacancy until at least after this year's midterms. Given the virtual certainty that the Democrats will gain seats this November, we will be in a much better position to fight nominations six months from now than we were six months ago. The Gang of 14 will become irrelevant after this term, and the GOP will almost certainly lose the votes necessary to invoke the nuclear option. This means that even if Democrats don't re-take control of the Senate, the Democrats will once again be able to use the filibuster freely and the GOP will not be able to do anything about it except curse and pound their fists.

Given those circumstances, Lieberman's decision to not fight to the (sadly inevitable) death on Alito was hardly unreasonable. Avoiding bloody conflicts until victory seems at least possible might not be a very sexy strategy, but history and common sense both show that it works.