Why the filibuster is a good idea for the Democrats and the Hamas victory might not be so bad after all

Here at the Show, we tend to be wary of media "certainties." Sure, sometimes the media is accurate (they usually nail that "time of sunrise" and "time of sunset") but generally, whenever the media conventional wisdom coalesces around a conclusion, like how George W. Bush couldn't win re-election with his poll numbers and how John Kerry made people feel "safe", you should put your money somewhere else (George Bush was easily re-elected. John Kerry made most people "annoyed" and seemed "creepy").

Today we have the seemingly bizarre development that John Kerry and Ted Kennedy are going to try and filibuster Samuel Alito for confirmation to the Supreme Court. The media is already pronouncing this a foolish and destined-to-fail maneuver. And it is probably destined to fail (most other Democrats are not supporting it). But I don't think it's so foolish...the reason why starts with the following table:

Age of Supreme Court Justices:

1) Stevens-85
2) Ginsberg-72
3) Scalia-69
4) Kennedy-69
5) Breyer-68
6) Souter-66
7) Thomas-57
8) Alito-55
9) Roberts-50

Now, anything can happen, but it seems that the judge likely to retire next is John Paul Stevens, certainly among the most liberal if not THE most liberal judge on the bench (a Ford appointee, strangely enough). A Stevens replacement, much more so than Alito replacing O'Connor, has the potential to shake up the court. When O'Connor first announced her retirement (and Roberts was first nominated to replace her), most media reports accurately noted that major decisions such as Roe v. Wade were safe, as they were supported by a 6-3 majority. For some reason, during the Alito hearings, I was unable to find one single media story that mentioned that fact. Instead, they were all about how Roe is in "danger." The remaining five justices in favor of Roe are Breyer, Ginsburg, Souter, Kennedy and Stevens. An Alito confirmation keeps Roe safe and sound, assuming Kennedy stays with the majority. While Kennedy swings sometimes, he mainly does whatever keeps himself in the limelight, which in the case of abortion, now more than ever, means siding with the liberals. That means that Roe will not be overturned and we will all be forced to read more Kennedy decisions. Seriously, whatever your politics, reading a Kennedy decision is cringe-inducing--it's like reading earnest 7th grade poetry.

But if Stevens were to retire, then there would be a solid, 5-person conservative majority if Bush gets to appoint the successor. Assuming he nominates someone like Roberts or Alito, it would be extremely solid, not like the wishy-washy conservative majority that relied on the whim of Kennedy or O'Connor (and as a added perk, Kennedy would become far less powerful and hopefully would write less...or at least be less inclined to his "soaring" language, as the media usually refers to it).

Which brings me to why the filibuster is smart politics. The Democrats let the Roberts nomination through with, for them, a minimum of whining (though oodles more than the Republicans ever whined about Clinton's nominees). They have given Alito hell, but have not threatened a serious filibuster. But by putting the word "filibuster" out there, and letting it fail, they set the stage for a real filibuster the next time around. It doesn't seem as unprecedented if they try to use it for Stevens replacement, because, hey, they did it once before (even if it didn't work). And they, and the friendly media, will go all out explaining what the real stakes are in a Bush-appointed Stevens replacement. Overall, I'd say the Democrats have played their hand pretty well, slowly ratcheting up the stakes so that the nuclear histrionics they are planning on pulling seem like merely the next logical step.

A quickie comment on Hamas winning in the Palestinian elections: if the new Hamas leaders are serious about a stable Palestinian state, which is in their interest if they want to hold on to their power, then they will make some kind of peace with Israel. A poll released this morning says that approximately 50% of Israelis think their government should negotiate with Hamas. Like Nixon going to China and Clinton signing welfare reform, a Hamas-negotiated settlement would have an authority the Fatah government could never muster. It's also worth noting that while Hamas is a terrorist organization and last I heard is chartered for the destruction of Israel, they have a massive humanitarian relief program on the local level within Palestine. Many Palestinians that support Hamas do so for the very practical reason that Hamas helps them out, getting food, services etc. It in no way excuses their terrorist activities, but it helps explain why they garner so much popular support (again, I think the media here has been tremendously lax in reporting the full scope of Hamas activities). Hamas has a real opportunity to break with the past, make peace, and reform the Palestinian government and security forces from a corruption that was institutional within the Fatah movement. It may not seem like an ideal situation, but it may be the best chance the region has.