Could there still be a filibuster in Alito's future?

by Tim Grieve

Conventional wisdom -- including our own -- says the Democrats aren't going to filibuster the nomination of Samuel Alito. Dick Durbin says not so fast.
According to a report in the Chicago Sun-Times, the Democrat from Illinois thinks a filibuster is more likely than he did just a few days ago. "A week ago, I would have told you it's not likely to happen," Durbin said Thursday. "As of yesterday, I just can't rule it out. I was surprised by the intensity of feeling of some of my colleagues."

Durbin, who has announced that he'll vote against Alito, said he still doesn't know whether opponents of the nomination have the votes to pull off a filibuster. "It's a matter of counting," he said. "We have 45 Democrats, counting [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."

The Senate Judiciary Committee will vote -- probably along party lines -- on Alito's nomination Tuesday. Senate Majority Leader Bill Frist will likely put the matter before the full Senate on Wednesday. So far, only one Democrat, Ben Nelson of Nebraska, has announced that he'll cross over to support Alito. But even if the rest of the Democrats stick together in opposition to Alito, there's a big difference between casting a futile no vote and going to the mat on a filibuster.

Can Durbin round up 40 colleagues who are willing to take that step? He says he won't know until he knows. We say, don't hold your breath.