Go Nuclear

Dick Durbin thinks the Democrats may have enough votes to launch a filibuster against Justice Alito...

U.S. Sen. Dick Durbin (D-Ill.) announced Thursday he will vote against Judge Sam Alito for the U.S. Supreme Court. And he said so many other senators intensely oppose Alito that they may have enough votes to sustain a filibuster against the conservative jurist.

...As the No. 2 Democrat in the Senate, it's Durbin's job to count votes for and against Alito. He said he won't know until Tuesday if there are enough strong opponents to filibuster Alito's nomination.

"A week ago, I would have told you it's not likely to happen," Durbin said. "As of [Wednesday], I just can't rule it out. I was surprised by the intensity of feeling of some of my colleagues. It's a matter of counting. We have 45 Democrats, counting [Vermont independent] Jim Jeffords, on our side. We could sustain a filibuster if 41 senators ... are willing to stand and fight.

"We're asking senators where they stand. When it reaches a critical moment when five senators have said they oppose a filibuster, it's off the table. It's not going to happen. But if it doesn't reach that moment, then we'll sit down and have that conversation."

Professor Bainbridge, who's a solid Alito supporter, is on record opposing the nuclear option. He has a good argument -- a helluva a lot more solid than any argument the Democrats have for filibustering Justice Alito (the latest last-ditch attack is flat-out embarrassing, as noted by Jonathan Adler here). But in my mind, it's either drop the bomb, or raise the ante to their level. If we're going to politicize judges this much, let's discuss a recess appointment, and appoint Robert Bork.