I was so disappointed in my Senator Jeff Bingaman's vote, and I've written him a REAL LETTER abut that, but I'm not about to just go out and trash him. I think we need to think more about our own strategies first.

I've been conversing with Sen Jeff for awhile both critically and supportively. I know he does care. He's VERY popular here because he can get cross-over votes on things that affect New Mexicans. His resulting track-record is not as good as I would prefer, but it ain't that bad, either. He worked his butt off on the Energy Bill and the Bankruptcy Bill, with probably no support through those long ordeals from NM Progressive Dems at all. I think, in the end, he just probably thought, "SCREW IT."

And the Progressive Dems of America/New Mexico are only just beginning to strike up a serious sustained conversation with him. That serious conversation is the only thing that will do the job. This has to be a sustained team effort, IMHO.

Also, there is so much horse-trading going on, because of the way things are. We The People have to make more noise than the powers that finance the campaigns. Right now our voices are all we've got.

I don't know who all contacted him on Alito. Every NM Progressive Dem I know was either in Santa Fe trying to get progressive legislation passed(we are MOVING on voting machines, folks!!!) or trying to put together a progressive agenda for the State Party Platform, in time for our running of Patricia Madrid against Heather Wilson for Congress.

So I can see how Sen Jeff decided to vote the way he voted. Although I don't agree with it.

I believe we are creating a lot of power in our noise. I think we need to be very creative and mature and sober and saavy with it.

I also think the incredible evaluation process of "the Alito fight" that is occuring promises many extremely valuable insights and possibilities.

I know I've sure learned a lot! Thank you a million times over, Bob, for your leadership in this.

Back to blogwhoring for justice:

First, I've cross-referenced the Dem Senators for and against the filibuster with who's up for reelection this year, and who's in the Gang of 14. (Hey -- everyone in the G14 voted for cloture! Hey -- if everyone up for reelection pandered to their base, we would have won!)

(I've also got links to a couple of challengers: Ned Lamont (vs Joementum) and Mark Wilson (vs. Cantwell). I'd appreciate people's thoughts about Wilson, in particular: is he the best guy to beat Cantwell in the primary and still win the general? Is Cantwell really a Vichy?)

Second, I REALLY wish that everyone who made millions of phone calls, emails and faxes to Senators before the cloture vote, would make at least a few - and hopefully more than a few - to praise those who did the right thing, and later to chastise those who didn't. I'm starting with the praise to the good guys. It's really important, both to retain the moral high ground (we say thank you to those who support us), AND TACTICALLY, because it reminds them that WE'RE STILL PAYING ATTENTION.

Please, please, make the thank you calls, and then we'll start making the screw you calls. I estimate we -- meaning everyone, Kos, MoveOn, NARAL, everyone -- turned out several hundred thousand phone calls against cloture. I'd like to crank out at least 50,000 thank yous over the next week or two.

As before, resources are over at my site, but go wherever you want for your info. I just want the calls to go out!

Thanks.

efore, complete contact resources are over at my site.

Thanks!!

Thersites

It's all over the news today that on Alito's first vote he sided with the moderates and liberals on the court which upheld on a 6-3 vote a stay of execution for man in Missouri. Is this a way to stick it in the eye of right-wing nut conservatives who supported him?

That vote isn't all that meaningful. Alito could be a sincere Catholic pro-lifer: anti-abortion, anti-death penalty. But it's more likely he's just finding his sea legs by voting to postpone an execution till he can get settled and review it more carefully.

Okay, I just registered and I want to jump in on this one. Bob, thank you for your efforts. You convinced me that I should take a closer look at Alito and the prospects of a filibuster. More importantly, you energized my own efforts in putting together a personal appeal to my friends, asking them to participate in the phone campaign. At the very least, I successfully convinced my wife to make a bunch of phonecalls Monday morning.

I'm going to paste in some of my communications from the past few days. I apologize in advance for not having the time to organize and rearrange this into a more coherent whitepaper, but I hope the ideas are at least good enough for public review. Feel free to point out inaccuracies in my understanding or flaws in my presentation; I can take criticism.

This Alito battle is not at all water under the bridge. Yes, we failed big time (as Democrats) on this one. And I think the negative effects may reverberate for decades. But, if we're not careful, it might go even further down hill from here. We've got to start having some effective coordination and leadership of our elected officials in Congress. Less time posturing and more time doing the strategic planning to steer the course of events.

The Alito strategy should have been to trust the people enough to tell them the whole story, reframing the debate about what is to be expected of the confirmation process, and the political process, in general. We need to remind the American public about the long tradition of building consensus and allowing the minority to exercise its powers, with respect to its fundamental beliefs, to the fullest extent allowed by the Senate rules.

If we don't start preparing for this fight, we're going to be sitting on the sidelines watching an important tradition - the tradition of valuing consensus - the idea that the MAJORITY SHOULDN'T ALWAYS BE ALLOWED TO RULE (even if they're Dems) - get flushed down the toilet.

So, here are some of my random thoughts. Hope somebody finds them useful, or maybe we can further develop my thinking ...

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The fact that this was the second closest confirmation of a Supreme Court Justice in history underlines my point that consensus on this nomination was not good enough, and this itself should have been used as justification to "persuade" President Bush to choose a more moderate candidate. And I underline "candidate" because that's what an appointee really is prior to receiving a confirmatory vote from the Senate. Then, when the President would laugh and say "why should I" the Democrats could say "because we believe he's going to be bad for the country, and we believe so strongly in that eventuality, that we're going to have to invoke the filibuster." Now, we've explained to the American people why we believe we're justified in invoking this power that is not to be used lightly, but we feel that the minority is being steamrolled by the majority.

The Democrats should have trusted the American people, that they would understand the political process that I outlined, below, and they should have attempted to go on talk shows or whatever it took to explain this succinctly and make their case. They could have reminded the people that it is perfectly acceptable to not confirm a President's nomination, and further that there is a long tradition of doing just that, when necessary, and the Framers never intended for the President to have carte blanche. They could have made their argument in a way that would have prevented alienation and energized their base. They failed, miserably, on what I will predict has serious long term negative consequences, way beyond just politics as usual.

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Here's a comment from one of my friends the day after confirmation, and my response:
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[snip]
As for the unSupreme court, it seems to me the checks and balances principle needs to apply there in some way as a check against extreme positions unacceptable to the populace in general. [snip]

Response:
In my belief, the kind of check against extremism that you're talking about is exactly one of the purposes of the confirmation process, beyond being just a sanity check for the candidates basic skill level and qualifications. And, because that process occurs in the Senate, it needs to be subject to the same kinds of rules for debate that any other "proposal" is subject to, including the use of the filibuster, in selected cases, to enforce the bargaining power of the minority. Again, if the Democrats had thought this through they would have been using the last few months to prime the American public on this subject, so that when it came time for what should have been the "big fight" they'd have already laid the foundation for using all the tools at their disposal and be able to do the right thing, while minimizing negative political repercussions.

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Here's another comment from a different friend, and my response...
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[snip]
I was relieved there was no filibuster because it would likely have been Judicial Committee Hearings Redux, times 2, with Senatorial windbags including Republicans (condescendingly) but especially Democrats (with all the emotion) calling attention to themselves big time, with no substance to their positions except "philosophy" and "politics" and turning off the center of the political spectrum. I could not abide the thought of Biden and Kennedy, et.al., flailing at the air, or the Republicans stating the Alito is the second coming, any more than I could have been sympathetic to the right wing trying to bring down Ginsburg and others in the past. [snip]

My response:
I understand your feelings about not wanting to watch the spectacle of the Senate and the posturing and so forth. But that's really beside the point. In fact, that's how the Senate operates, so we ought to just "deal."

The Executive branch has the ability to nominate a judge for the Supreme Court, but that nomination has to be approved by the Senate. That is the check that the Founders put on the Executive's power to appoint this position. If the Founders had wanted to give carte blanche to the President, then they wouldn't have imposed that check. Now, did the Founders place any restrictions on the reason that a Senator must give for voting against the President's nominee? No, absolutely not. So all this talk about having to prove that a nominee is not fit to be a judge and that is the only valid criteria and it's wrong for a Senator to take the position "I don't like this guy because he'll destabilize our Constitutional system of checks and balances" ... all that talk is garbage, pure and simple.

The Founders gave the Senate the right to determine their own rules on how to make an up or down decision. For some 100 odd years, the Senate ran on the principle that if even one Senator felt strongly enough that the majority was not acting in the best interest of all Americans, then that Senator had the power to postpone action indefinitely. In 1917, or something like that, the Senate changed its rules enabling a supermajority to shut down debate (invoke cloture). Later, the rule was changed to 3/5ths. So, you see, the bar for consensus has been lowered, but it's still quite high. There has always been a strong tradition in the Senate to build consensus around issues, and the THREAT OF a filibuster has been an important force acting on the majority in favor of building consensus with the minority.

Clearly, there was no consensus on the Alito nomination and a case can be made that this is a very important nomination having far reaching consequences. Given this scenario, the minority certainly had the right to press their case to the fullest ability as granted by current Senate rules, to prevent this thing from going to vote, thereby forcing the President to nominate a new candidate who would be perceived with much greater consensus as being a generally agreeable choice as opposed to potentially weakening the long term health of our Democracy.

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Here's my original appeal to my little group of friends, from Saturday, 1/28:
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If you want to skip past my commentary, go down to the bottom and you'll find the names of Senators whom you might call and ask to support the Alito filibuster.

If 41 Senators refuse to vote to end the filibuster on Monday, then it will proceed. Ignore the press for a moment and put yourself in their shoes -- would you want to actively squelch thousands of passionate voices, represented by Kerry and Kennedy and others, who, for whatever reason, feel strongly that Alito's confirmation is wrong?

The media is prematurely trumpeting "there aren't enough votes." The fact is, there are too many non-committals to predict the outcome. Our Senators want to hear from us on this matter; they're waiting for a groundswell, one way or another, to tell them what to do. It's unfortunate that some of them are afraid to take a stand for their own principles, but that's a topic for another day.

There are times when our instincts are to sit by, passively, and allow things to happen. But then a few rising, passionate voices convince us that we're wrong in doing so. This is one of those times.

The filibuster is not an abuse of power, as several Republican leaders have tried to portray. In fact, it's the opposite -- the possibility of a filibuster has been a background force for over 200 years in giving everyone a voice, promoting political dialogue and compromise. In my opinion, the approach is valid even when the minority happens to be dead wrong -- in delaying the enactment of civil rights laws, for example. The filibuster cannot indefinitely block the right thing from being done; it can, however, prevent the majority from doing the wrong thing in haste. There is such a strong tradition in the Senate for this approach that originally even one Senator could hold up a vote. Think about why this makes good sense -- the guy who stands up is merely trying to prevent a change from what IS to what MIGHT BE. He believes the majority is not acting in our best interests, and he might very well be correct.

Here's some stuff I put together from Democrats.com, suggesting that the filibuster of Alito is not such a clear-cut defeat as has been portrayed by the media:
[snip]