Not to be lost in the reporting on Tuesday’s Senate Judiciary Committee vote to endorse the nomination of Judge Samuel Alito to serve on the Supreme Court is the fact that U.S. Sen. Russ Feingold, D-Wisconsin, has voted for the first time in his Senate career against a Supreme Court nominee.
More than any other vote by a member of the committee — which split 10-8 along partisan lines, with all Republicans backing Alito and all Democrats opposing his nomination — Feingold’s vote stands out.
While the seven other Democrats on the Judiciary Committee had all voted against one or more Republican nominees for the high court, Feingold had, until Tuesday, voted to confirm every Supreme Court nominee, Republican or Democrat, to come before the panel.
This break in pattern by the man who is arguably the Senate’s most adventurous thinker and independent player ought to serve as a basis for rethinking strategies with regard to blocking the nomination as it now moves to the full Senate — up to and including the prospect of a filibuster.
Simply put, if Alito is unacceptable to Feingold, then he should be unacceptable to a good many other senators — including moderate Republicans with whom Feingold has worked closely on campaign finance reform and a host of other issues over the years, such as Maine Senators Olympia Snowe and Susan Collins and Rhode Island Senator Lincoln Chafee.
Why give this special status to Feingold? Because, since his arrival in the Senate in 1993, he has distinguished himself by his consistent if often controversial approach to presidential nominations.
The senator from Wisconsin has a record of supporting disputed Republican picks for top posts — including former Attorney General John Ashcroft and Supreme Court Chief Justice John Roberts — because of his belief that presidents should be afforded broad leeway when it comes to making appointments. A progressive who is perhaps best known for casting the sole Senate vote against the Patriot Act in 2001, Feingold has long argued that Democrats must support the qualified conservative nominees of Republican presidents if they expect Republicans to support the qualified liberal nominees of Democratic presidents.
Feingold’s standard has often infuriated liberal interest groups, along with many of his fellow Democrats, who have argued that he has given too much slack to right-wing Republicans who will never repay the favor. Why, the common question goes, does a progressive Democrat give conservative Republicans a blank check?