The Democrats Have A Death-Grip On The Senate--Or Do They?

Amidst all the other news of the past week, one item which got surprisingly little press was the "filibuster-proof" supermajority attained by the Democrats in the Senate with the concession of Minnesota Senator Norm Coleman to Saturday Night Live comic Al Franken. Maybe even Democrats and their compliant press figured out that it's just not that easy.

The Minnesota Supreme Court finally finished off its dirty work of selectively choosing which election laws it would apply to secure the victory of the foul-mouthed TV and Air America shock comic Franken in the race against incumbent Senator Coleman. After ruling that Franken had received "the highest number of votes legally cast," it declared Franken the candidate who should be certified to the Senate as Minnesota's next Senator. As for "legally cast," since the court itself chose which votes were legal, its conclusion was inevitable given the highly political makeup of the court. The court stuck to "the letter of the law" where convenient, thereby disenfranchising many military absentee ballots. On the other hand, when it came to voting irregularities involving missing and "discovered" ballot boxes and double-counts for Franken, the court ruled that the "spirit of the law" was more important than the letter of the law.

Coleman originally considered a federal appeal, and even though his cause was just, he finally came to realize that when it comes to the application of state election laws, the U. S. Supreme Court will find every way possible to defer to the findings of the state courts. So Coleman personally called Franken to concede the election, giving the Democrats 60 votes in the Senate, enough to invoke cloture (shutting off a filibuster). To add insult to injury, the court ordered Coleman to pay Franken $75,000 to defray Franken's costs on appeal. Note: "Bush v Gore" was not a divergence from that rule. In the Bush-Gore case, the Florida Supreme Court didn't interpret state elections laws--it rewrote them from the bench.

So, the game is over, right? Not so fast, my friends. "Filibuster-proof" is in the eye of the beholder. If this were a simple matter of mathematics, then the game is indeed over. But that assumes that all Democrats are both safe votes and safe bets, and that simply isn't the case. So it really comes down to "reliable" votes, and those mathematics are not nearly so clear.

Who are the clear and present dangers to Democratic absolutism? To start with, recent convert Arlen Specter of Pennsylvania has begun to demonstrate that he can be a pain in the posterior of Democrats as easily as he was a pain for the Republicans. Snarlin' Arlen, as he is affectionately known, has already expressed his displeasure with much of Sonia Sotomayor's jurisprudence. Specter is miffed that he did not automatically get his chairmanship of the Judiciary Committee back when he turned his coat and became a Democrat. He suffers from a very serious case of humility-deficiency, as well as certain physical ailments. And by leaving the Republican Party, he left them with only three wobbly "moderates" (aka "RINOs")--Olympia Snowe and Susan Collins of Maine and George Voinovich of Ohio (and he's only good until the end of 2010, since he has announced his retirement). The remainder of the Republicans are very likely to vote against cloture should the opportunity arise.

Given that Senate Majority Leader Harry Reid is not known for being a good herder of Democratic cats, he is also facing some grim realities as well. The occasionally senile Senator Robert Byrd of West Virginia is a sporadic fan of separation of powers, thus making him an unsure bet on Presidential appointments of less-than-stellar Supreme Court nominees and socialist schemes for the economy. And Byrd is in very poor health, having missed multiple crucial Senate votes over the past year. That makes Byrd an unsure bet on two counts.

Likewise, Senator Ted Kennedy of Massachusetts has been in deteriorating health since he had a seizure followed by surgery for brain cancer. He has appeared healthy in public appearances but insiders say he is good at putting on a healthy public front while becoming exhausted to the point of near-collapse in private.

There are Democrats from the Rust Belt who will vote for cloture on some issues but not on others. Rust Belt Democrats are not at all pleased with Obama's cap-and-trade scheme which will cost thousands of jobs in already-depressed states. The goofy new kid, Franken, has expressed serious doubts about the Obama health care bill (he called it "not feasible"). And several moderate Southern Democrats have expressed reservations about Sonia Sotomayor's statements about the law, race and legal precedent combined with her recent slapdowns from the Supreme Court.

Republicans will have to be very cautious in considering attempted filibusters. If they try too often and lose, they will appear to be weak and merely silly obstructionists. If they don't use them at all when the entire future of the Republic is at stake (cap-and-trade, Obamacare, the next two Supreme Court nominees), they risk looking unserious and cowardly. But given the shakiness of the Democratic cloture coalition, they can never simply ignore the possible use of the filibuster. All they have to do now is convince John McCain that he has been relegated to the back bench, and if he ever wants to be prominent in the Party again, he needs to stay out of power-broking with the Democrats who don't honor their commitments.