John Kerry Yodels for Alito Filibuster

His fellow Democrats cringe at his Davos folly

“We have to go all out…. This situation absolutely requires a really futile and stupid gesture on somebody’s part.”

From his ski resort in Davos, Switzerland, John Kerry was just the guy to do it.

In calling for his fellow Democratic senators to filibuster the Supreme Court nomination of Samuel Alito, Kerry might well have been inspired by Eric “Otter” Stratton’s stirring exhortation to action in National Lampoon’s Animal House. But Kerry couldn’t match Otter’s success.

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When Alito’s confirmation hearing ended in mid-January 2006, Senate Democrats had little or no prospect of garnering the 41 votes against cloture that they would need in order to muster a successful filibuster against his confirmation. As one professor of politics observed at the time:

Alito did not hand the Democrats the kind of ammunition they needed to generate a groundswell of public support for preventing his appointment. The Democrats needed some show of ideological rigidity or temperamental aggressiveness to spark a reaction that would make the public sympathetic to a filibuster. I don’t think they have that. [Boston Globe, Jan. 13, 2006]

“I do not see the likelihood of a filibuster,” liberal Democratic senator Dianne Feinstein acknowledged right after the hearing. The silence of other Democrats who had strongly supported the filibuster of George W. Bush’s appellate nominees was equally revealing: Patrick Leahy, the lead Democrat on the Judiciary Committee, “refused to answer when asked whether he had heard anything that would justify a filibuster.” Chuck Schumer “also refused to answer a question about the potential for a filibuster.”

None of the seven Democratic signatories to the Gang of 14 Agreement suggested that Alito’s nomination presented “extraordinary circumstances” that would justify a departure from their general opposition to a filibuster. Their support for cloture together with the support of the 55 Republican senators would provide more than the 60 votes needed to defeat a filibuster effort.

In late January, as Democrats prepared for floor action on the Alito nomination, Democratic leader Harry Reid recognized that there was no point in fighting a losing battle on a filibuster. Such a battle would pit Democrats against each other. It would invite attacks from the hard Left against even those Democrats who were ready to vote against Alito’s confirmation but who wanted to maintain some semblance of responsible behavior with most of their constituents. So Reid and other Democratic leaders decided that there wouldn’t be a filibuster attempt.

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John Kerry couldn’t bother to hang around D.C. for the Senate debate on the Alito nomination. As the New York Times reported, he “was in Davos, Switzerland, mingling with international business and political leaders at the World Economic Forum.” What better way for the plutocrat-by-marriage to confront the challenge of climate change than to be flown in his private plane across the Atlantic to hobnob with the cosmopolitan elites?

John Kerry, again in Davos

Kerry, who had lost the presidential race to Bush in 2004, had hopes of winning the Democratic nomination again in 2008 and was eager to curry favor with the party’s liberal activists. From Davos (per same NYT article), Kerry “began calling fellow Democratic senators in a quixotic, last-minute effort for a filibuster to stop the nomination”:

Democrats cringed and Republicans jeered at the awkwardness of his gesture, which almost no one in the Senate expects to succeed.

“God bless John Kerry,” said Don Stewart, a spokesman for Senator John Cornyn, a Texas Republican on the Judiciary Committee. “He just cinched this whole nomination. With Senator Kerry, it is Christmas every day.” …

Senator Harry Reid, the Democratic leader, sounded almost apologetic about Mr. Kerry’s statements.

“No one can complain on this matter that there hasn’t been sufficient time to talk about Judge Alito, pro and con,” Mr. Reid said on the Senate floor. “I hope that this matter will be resolved without too much more talking.”

Even NPR mocked Kerry:

White House spokesman Scott McClellan maybe got off the best line today when he said even for a senator it takes some pretty serious yodeling to call for a filibuster from a five-star ski resort in the Swiss Alps. I suspect this is the last time we’ll see Kerry issue such a call from that location.

But Kerry’s call for a filibuster “was celebrated by leaders of the coalition of liberal groups opposing Judge Alito’s nomination.”

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Kerry decided to fly back to D.C. the next day. He delivered a Senate floor speech against Alito that was replete with follies. For example, he faulted Alito for embracing the “unitary executive” theory, but then hilariously botched his criticism:

As Beth Nolan, former White House counsel to President Clinton, describes it:

“‘Unitary executive’ is a small phrase with almost limitless import: At the very least, it embodies the concept of Presidential control over all Executive functions, including those that have traditionally been exercised by ‘‘independent’’ agencies and other actors not subject to the President’s direct control. Under this meaning, Congress may not, by statute, insulate the Federal Reserve or the Federal Election Commission . . . from Presidential control.”

Judge Alito believes you can.

No, Senator Kerry, the unitary-executive theory holds that you can’t insulate executive-branch agencies from presidential control. (It gives effect to Article II, section 1 of the Constitution, which states that “The executive Power shall be vested in [the] president.”)

On the day of the cloture vote, Kerry tried to use the collapse of Harriet Miers’s nomination in support of his filibuster effort—and even gave me a shout-out of sorts:

As we approach this nominee, we can’t forget that he was not the President’s first choice. His first choice was Harriet Miers, and opposition to her nomination came not from Democrats but from the far right of the Republican Party. They challenged her ideological purity with such conviction that the President capitulated to their demands and gave them Judge Alito instead—a nominee who they received with gleeful excitement.

Jerry Falwell ‘‘applaud[ed]’’ his appointment. Ed Whelan called it ‘‘a truly outstanding nomination.’’ Rush Limbaugh called the nomination ‘‘fabulous.’’ Ann Coulter and Pat Buchanan raved about how it would upset liberals. This rightwing reaction can only mean one thing: they know what kinds of opinions Judge Alito will issue—opinions in line with their extreme ideology.

As expected, Kerry’s effort to block cloture flopped. The vote in favor of cloture was 72 to 25. All of the Gang of 14 members voted for cloture, as did an additional 12 Democrats. Among the 24 Democrats who sided with Kerry were Harry Reid, Judiciary Committee members Patrick Leahy, Ted Kennedy, Joe Biden, Dianne Feinstein, Chuck Schumer, and Dick Durbin, and a freshman senator by the name of Barack Obama.

Kerry also had the ardent support of law professor Erwin Chemerinsky:

The Democrats must follow Sen. Kerry’s lead and do all they can to stop Alito’s confirmation to the Supreme Court. Alito’s views are antithetical to everything Democrats stand for and advocate. A filibuster is essential. [Chemerinsky, “Democrats must use the filibuster to block Alito,” The Herald-Sun (Durham, NC), January 29, 2006.]

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Given the strong conservative record that Justice Alito has compiled, liberals might be tempted to think that John Kerry was right to try to filibuster his nomination. But Kerry was a show horse, not a workhorse. If he had been serious rather than merely performative, he would have worked hard much earlier to try to lay the foundation for a successful fight, and he certainly wouldn’t have invited ridicule by jetting off to Davos and launching his filibuster call from there.

Kerry’s failure had consequences. Ten years later, President Barack Obama and other Democrats would argue that his Supreme Court nominee Merrick Garland was entitled to an up-or-down vote on the Senate floor. Insofar as they argued that the Constitution required that a Supreme Court nominee receive an up-or-down vote, their argument was ludicrous. It’s a special discredit to Chemerinsky’s stature as a scholar that he would take that position in 2016 when he in 2006 had urged Senate Democrats to filibuster the Alito nomination in order to prevent a final up-or-down vote.

Insofar as Obama and others were making a more modest argument about what accepted political norms supposedly called for, their support for the filibuster of Alito was among the ample evidence refuting the existence of a norm that every Supreme Court nominee should receive an up-or-down vote.