Alito nomination to test ‘Gang of 14’

Senate Republicans said yesterday they will use the “nuclear option” to ban judicial filibusters if Democrats try using the tactic to block the confirmation of Judge Samuel A. Alito Jr. to the Supreme Court.

“Certainly, this does not rise to the level of extraordinary circumstances,” said Sen. Mike DeWine, Ohio Republican. “Therefore, I would be prepared — if a filibuster were tried — to go to change the rules in the Senate to stop the filibuster.”

Mr. DeWine is a member of the “Gang of 14” senators who can determine whether a filibuster can succeed or whether the “nuclear option” can be deployed to break one.

After meeting with Judge Alito for more than an hour yesterday, Mr. DeWine said the federal judge is in the “mainstream” of conservative judicial thinking and doubts that Democrats in the “Gang of 14” will permit a filibuster.

Under terms set by the Gang of 14, the seven Democrats promised not to back filibusters except under “extraordinary circumstances” and the seven Republicans vowed not to invoke the “nuclear option” unless Democrats abuse the filibuster.

Yesterday, Judge Alito had five private meetings with senators on Capitol Hill, drawing praise from Republicans and at least qualified praise from Sen. Tim Johnson, a Democrat from conservative South Dakota.

“From what I know at this point, it would appear that his 15 years on the federal bench, his experience, his legal skills are at a high level,” said Mr. Johnson, who said he hasn’t made up his mind about whether to support the nomination or seek a filibuster.

No Democrat has called for a filibuster against Judge Alito, but several have declined pointedly to rule out such a tactic to keep him off the high court.

Most Republicans have said they support using the “nuclear option” to break any new filibusters against judicial nominees such as Judge Alito. But for Republicans to ban judicial filibusters, they need the support of at least three Republicans in the Gang of 14.

Four Republicans and two Democrats have found no “extraordinary circumstances” with the Alito nomination. Although that number is not enough to prevent Democrats from filibustering the nomination, it is enough to employ the nuclear option.

Sen. John W. Warner, Virginia Republican, declined to comment yesterday on whether Judge Alito’s nomination amounts to “extraordinary circumstances,” except to say that he is “strongly supportive of this nomination, based on what I know.”

Sen. Ben Nelson, Nebraska Democrat, said he isn’t aware of any “extraordinary circumstances” and has “not heard any of my Democratic colleagues in the Gang of 14 talk about using the f-word, filibuster.”

Sen. Mark Pryor, Arkansas Democrat and Gang of 14 member, said yesterday that he was not aware of any reasons to filibuster Judge Alito.

“I certainly start with the presumption that there are no extraordinary circumstances,” he said. “Now, it’s very early, and maybe in my mind those could present themselves. I certainly hope that they would not in this nomination.”

Sen. Susan Collins, Maine Republican and another group member, was largely positive about the nomination despite her “troubling concerns” about Judge Alito’s dissent in a 1991 case in which he said it was not an “undue burden” for a woman to notify her husband before an abortion.

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