New Republic Story on Kerry's Filibuster
ON THE HILL
by Michael Crowley
Moments before Monday's vote on whether to filibuster the nomination of Samuel Alito, John Kerry was speaking to a near-empty Senate chamber. In his typical stentorian fashion, Kerry was arguing for a filibuster of the Supreme Court nominee, an effort the Massachusetts senator had single-handedly initiated a few days earlier to the open chagrin of fellow Democrats like Senate Minority Leader Harry Reid. "What could possibly be more important than this?" asked Kerry, who stood alone amid a sea of empty desks. But Kerry's plea for relevancy didn't cause much of a stir until his Massachusetts colleague and filibuster partner, Ted Kennedy, rose to unleash a bellowing anti-Alito stemwinder. With a reddening face and hoarse voice, Kennedy waved his arms and smacked his podium with his open hand. The commotion caused a crew of usually blasé reporters to scurry from their workstations and into the Senate press balcony to watch. "There is nothing that's more important than the vote we cast on the Supreme Court, except sending young Americans to war!" Kennedy thundered. When the old lion's mighty lungs finally ceased, Kerry strolled over and firmly shook Kennedy's hand. From up in the press section, one could overhear Kennedy say, "Thanks, John," in commendation of Kerry's leading role in the last-ditch fight against Alito. Before he departed, Kerry threw a noticeable glance up at the now-crowded press section, clearly measuring the response.
In a vacuum, this would have appeared a heady moment for John Kerry. But, by most measures, Kerry's gambit was a flop. In substantive terms, the filibuster vote was a blowout: Only 25 of the 41 Democrats needed to block a confirmation vote sided with Kerry, and many of them did so grudgingly. In political terms, it was even worse. Kerry's last-minute stand spoon-fed reporters a story line of Democratic division and infighting. What's more, Democrats complained that this Gallipoli charge had handed Republicans an easy victory on the eve of the State of the Union — and had drowned out their own competing message.
The Alito flap is hardly the first time Kerry's efforts to remain relevant and to position himself for another White House run have put him at odds with his fellow Senate Democrats. In late November, for instance, Democrats fumed after Kerry scheduled a press conference reacting to a major Iraq address by President Bush at the same time as one planned by Senate Democrats, muddying his party's response and enabling reporters to revisit old 2004 campaign themes about Kerry's position on the war. This week's filibuster fizzle is just the latest example of how Kerry has begun to adopt a new, fighting-mad persona — and to alienate colleagues who think he's just positioning himself for 2008 at their expense.
One reason Democrats suspect the motives behind Kerry's attempted Alito filibuster is the way he went about it. Until last week, when he suddenly declared his opposition to the judge, Kerry had played virtually no role in opposing Alito's nomination. Shortly after this, in consultation with Kennedy, aides say, Kerry decided his party needed to mount a more forceful stand and declared that he would use his senatorial prerogative to attempt a filibuster — even though head counts had already made it unambiguously clear that Alito could not be blocked. In a closed-door meeting of Senate Democrats last Wednesday, Kerry and Kennedy made a vigorous plea for a filibuster. But they were challenged by Harry Reid and by no less a Bush nominee-basher than Chuck Schumer of New York, who, as chairman of the Democratic Senatorial Campaign Committee, is responsible for overseeing the party's 2006 Senate races. Schumer understood, as did Reid and many other Democrats, that the Alito nomination had already put vulnerable Democratic incumbents and candidates from red states in an awkward position — pulled between pro-Bush voters and the demands of liberal interest groups, activists, and bloggers. Forcing those Democrats to choose sides on yet another vote would only heighten their agony. Even Barbara Mikulski, a Kennedy-style paleoliberal, argued that Democrats should worry more about electoral realities than about taking bold stands for their own sake.
Democrats might have been more receptive had Kerry not been so late to the game. If he were really so appalled by Alito, they say, he should have been working for weeks to rally opposition. "The problem with Kerry is just that he sits on the sidelines. He was two weeks too late if he wanted to get involved in this fight and influence it in a meaningful way," says a Democratic Senate strategist. A Kerry aide counters that, apart from the Senate Judiciary Committee's Alito hearings, the Senate had been out of session for much of January. "Charges that it was hastily done don't consider the realities of the calendar," says the aide. But the Senate reconvened on January 18, a full week before Kerry's move. Indeed, it was Kerry who was most out of pocket; he missed the Alito hearings for a long trip to Iraq and, soon after, departed for the World Economic Forum in Davos, Switzerland. In fact, many Democrats cringe at the way Kerry briefly waged his fight by phone from Davos — which perfectly reinforces his culturally effete image. That several prominent Republicans, including John McCain, were also in Davos last week didn't stop the GOP from ridiculing Kerry with jokes about "yodeling" in his filibuster while skiing the Swiss Alps. "It was unfair, but perception is 99 percent of the battle," says one aide to a potential 2008 Kerry rival.
Kerry also forced some Democrats into highly awkward positions. Reid, for instance, initially groused about Kerry's move on the Senate floor, making the apt point that there had been "adequate time for people to debate" Alito. But, once Kerry cast the die, Reid (and Schumer) were forced to support the filibuster for fear of enraging liberals. Republicans taunted Reid for flip-flopping. Meanwhile, every other Democrat considering a 2008 White House run — Hillary Clinton, Evan Bayh, Joe Biden, Russ Feingold — voted with Kerry, even though none had planned to force a filibuster themselves. After the filibuster fell short, the White House issued a triumphal statement boasting of a "strong, bipartisan majority" vote for Alito. Some Democrats found that especially embittering, given that the final vote on his confirmation was much closer: 58-42, one of the narrowest confirmation margins of any Supreme Court justice. Kerry spokesman David Wade argues that the filibuster "helped strengthen the number of votes against final confirmation." But, although Democrats showed remarkable unity on the final Alito vote (only four members defected), that solidarity was overshadowed by the filibuster flap. "Democrats split over filibuster on alito," declared the front page of the January 27 Washington Post. Kerry "handed President Bush a big win on the eve of the State of the Union," says one veteran Senate Democratic aide. Moreover, Democrats were irritated that Kerry's move had sucked up so much press attention before Bush's speech. "The whole Democratic strategy was to go into the State of the Union framing it around ethics and corruption," says the irritated Democratic Senate strategist. "We were doing the Republicans' job by thrusting [Alito] into the spotlight rather than ethics."
By Monday, the aggravation at Kerry was plain to see. On a typical day, reporters can barely fend off the press-loving Schumer. But, when he arrived outside the Senate chamber for the filibuster vote, Schumer was grumpy and terse. In what may have been an unprecedented event, Schumer blurted out a quick statement to the press mob and then turned heel and abruptly fled into the chamber.
So what explains Kerry's decision? It may be that he really believes Alito is an intolerable radical. But so do many other Democrats, like Schumer, who still concluded a filibuster was a net loser politically. Kerry presented his move as a matter of principle: "I reject those notions that there ought to somehow be some political calculus about the future," he declared. "I know this is flying against some of the sort of political punditry of Washington." Yet his actions were entirely consistent with someone wooing liberal activists in preparation for the 2008 presidential primaries. From his escalating criticism of the Iraq war to his recent public quip about a possible Bush impeachment (aides insist it was a joke), Kerry is sounding more and more intent on challenging Clinton from the left. His Alito joust has made him a champion for Democratic pro-choice and civil rights leaders. He has also impressed activists in the liberal blogosphere — including at DailyKos.com, where he posted an explanation of his filibuster move. But even some liberal bloggers smelled a rat. At the site MyDD.com, the influential blogger Matt Stoller called Kerry's decision "a classic example of 'get points for trying' politics . . . a way for Senators to get credit from the left-wing of the party without having to actually do anything or stop anything. . . The attitude that the insiders have towards us is that we are a stupid ATM set up to feed their ineffectiveness." Poor John Kerry. It takes real talent to be trashed by the very people to whom you are trying to pander.
Michael Crowley is a senior editor at TNR.
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