February 3, 2006

Vote to stop Alito filibuster may not cost senators

LGBT groups won�t base endorsements on
allowing justice to be confirmed

by Eric Resnick

Washington, D.C.--LGBT political and advocacy groups are troubled by the ascension of Samuel Alito to the nation�s highest court, but are unlikely to chasten senators who made it happen.

Alito will become the fourth solidly conservative vote on the Supreme Court, moving it generally to the right, and making it more arduous on issues of lesbian, gay, bisexual and transgender equality.

Alito is believed to have ambitions of overturning the 1973 Roe v. Wade decision creating the right to sexual and reproductive privacy and abortion that underpins the 2003 Lawrence v. Texas decision striking state sodomy laws.

He does not believe the original language of the Constitution contains a right to privacy.

Alito also has a record of hostility to cases brought under Title VII of the Civil Rights Act of 1964. He has tried, as an appellate judge, to make the initial filing requirements on those cases so severe that no one could successfully bring one.

In the 1997 Bray v. Marriott Hotels, a racial discrimination case, Alito�s colleagues scolded him for that view saying, �Title VII would be eviscerated if our analysis were to halt where [Judge Alito�s] dissent suggests.�

Discrimination suits brought as sex-stereotyping under Title VII have, since 2004, been the most successful avenue to press for lesbian and gay workplace and housing equality, and the only avenue to ensure transgender rights.

Alito�s confirmation was all but guaranteed January 30 when 19 Democrats joined one independent and all Republicans on a vote for cloture, a motion to end debate, defeating a filibuster orchestrated by Massachusetts senators Edward Kennedy and John Kerry.

Cloture requires 60 votes.

Since everyone knew of the Republican commitment to confirming Alito with a simple majority on the senate floor, the cloture vote was the only opportunity to stop his confirmation.

Democrats Daniel Akaka and Daniel Inouye of Hawaii, Max Baucus of Montana, Jeff Bingaman of New Mexico, Robert Byrd and John Rockefeller of West Virginia, Maria Cantwell of Washington, Thomas Carper of Delaware, Kent Conrad and Byron Dorgan of North Dakota, Tim Johnson of South Dakota, Herb Kohl of Wisconsin, Mary Landrieu of Louisiana, Joe Lieberman of Connecticut, Blanche Lincoln and Mark Pryor of Arkansas, Bill Nelson of Florida, Ben Nelson of Nebraska and Ken Salazar of Colorado joined independent Jim Jeffords of Vermont in voting to move Alito�s nomination forward.

The cloture petition passed 72 to 25.

A day later, all except Byrd, Conrad, Johnson and Ben Nelson joined Republican Lincoln Chafee of Rhode Island and the rest of the Democrats opposing Alito in the symbolic Senate floor vote.

Alito was confirmed mostly along party lines with 58 votes in favor and 42 votes opposed--one more than it would have taken to end the process by filibuster.

Filibuster isn�t a litmus test

Human Rights Campaign political director Chris Labonte said the Alito confirmation votes will be reflected on their legislative score card, as will be the September vote on Chief Justice John Roberts, but whether they will choose the cloture vote or the floor vote has not been decided.

�It depends on the other votes in the universe of those Congress takes,� said Labonte. �It will be one of a lot of different factors.�

Labonte would not say if a vote in favor of Alito would be considered an anti-gay vote. �All members [of the Senate] were aware of our opposition to Alito and that their votes would be taken into consideration, but in the end, it comes down to our relationship with the senators on all the issues.�

Asked if HRC would weight the cloture vote more than the second vote, Labonte said that both votes were important because the senators only consider them procedurally different, not operationally different.

HRC has, in the past, endorsed and contributed to 13 senators who voted for cloture: Democrats Akaka, Baucus, Bingaman, Cantwell, Carper, Inouye, Kohl, Landrieu, Lieberman, Bill Nelson, and Salazar, independent Jeffords, and Republican Chafee.

Asked if a pro-Alito vote affects future endorsement chances, Labonte said, �HRC has only one litmus test--a vote for a federal marriage amendment.�

National Stonewall Democrats spokesperson John Marble said he could see how a large number of people would view a pro-Alito vote as anti-gay, but �it would be irresponsible to exclude a senator [from endorsement] based on one vote for cloture, especially when they face races against anti-gay Republicans.�

�We encouraged senators to filibuster,� said Marble, �and this is something our board members [who have final say over endorsements] will be impassioned about, but we support based on a wide number of issues.�

�Senators view cloture differently than we do,� said Marble, �and we�re not going to sit an election out.�

Marble said Stonewall Democrats don�t endorse nationally without a local chapter recommendation. He said Salazar is currently under consideration by the Colorado group, and Bill Nelson is being considered in Florida.

�Gang of 14� ended filibuster�s chance

Eldie Acheson, the National Gay and Lesbian Task Force�s public policy and government affairs director, says that whether a pro-Alito vote is anti-gay or not �depends on who the [senator] is. It matters what�s in their mind.�

�I know that doesn�t help with the vote,� said Acheson, �but some voted with same-sex marriage and LGBT civil rights stuff in mind, and others made a different calculus.�

Acheson, who is a former Clinton Justice Department attorney who vetted judicial nominees, said the ability to stop Alito with a filibuster ended with the �Gang of 14� agreement in May.

That agreement, which was led by Republican John McCain of Arizona and Lieberman, stopped the Republican majority from using the �nuclear option� to end judicial filibusters in exchange for confirmation of five right wing Bush appointees to circuit courts who were being blocked by Democrats.

The agreement, which also included Ohio Republican Mike DeWine, was joined by Democrats Byrd, Lieberman, Pryor, Landrieu, Salazar, Inouye, and Ben Nelson--who all voted against stopping Alito by filibuster.

NGLTF was the first organization to decry the �Gang of 14� agreement, soon to be followed by other progressive groups.

�That agreement,� said Acheson, �completely sucked any kind of traction out of an effort to oppose Alito� because it �fed into the defensive crouch the Democrats have been in.�

Acheson said that based on the filibuster�s historical purpose, Alito presented �the perfect filibuster moment.�

The agreement between the 14 senators called for a filibuster to be used only in �extraordinary circumstances,� but did not define what that meant.

By restricting themselves to the agreement, Acheson said, �there was no way the Democrats could rationalize a filibuster.�

Acheson also said that when Ben Nelson declared he would not filibuster Alito moments after the judge was nominated, the Democrats� ability to make a case against Alito was further undermined.

Acheson agreed with blog accounts that also put blame on Senate Democratic Leader Harry Reid of Nevada.

Those accounts tell how Reid�s predecessor, Tom Daschle of South Dakota, made it a priority to stop extremist Bush judicial nominees with filibustering.

During Daschle�s tenure, ten nominees were stopped that way.

�To Tom Daschle�s credit,� said Acheson, �he was very muscular in his use of the filibuster.�

Daschle, however, was defeated by anti-gay Republican John Thune in 2004, in an unprecedented national Republican assault that included his �obstructionist� position on Bush nominees.

�Ben Nelson knows what happened to Tom Daschle,� said Acheson. And according to bloggers, so does Reid.

Alito was sworn in as the Supreme Court�s 110th Associate Justice on January 31.

More centrist justices John Paul Stevens is 86, Anthony Kennedy is 76, and Ruth Bader Ginsberg is 77 and has had cancer.

George W. Bush is scheduled to leave office in 2009.

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