Swiss Miss

By

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
blase 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 pressloving 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.

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