Up until this session of Congress, the filibuster was not even considered a fringe option for blocking Supreme Court nominees. With one notable exception, the case of Abe Fortas in 1968, the tactic had never been invoked to block a Supreme Court nomination. According to the official account by the Senate historian, Fortas was not torpedoed because of his ideology, but because of serious ethical issues.Besides totally mischaracterizing the Strom Thurmond-led movement to derail the Fortas nomination, which focused specifically on his high court rulings in favor of civil rights and limitations on the power of the state in criminal investigations, and ignoring the use of the filibuster against Clinton's nominees, Gerstein completely misses the point about why Lieberman's vote for cloture has infuriated so many Democrats. For Democrats, the "triggering of the Nuclear Option" wasn't a worse case scenario, to be avoided at any and all costs. It was, rather, the desired outcome, ending once and for all the noxious barrier to progressive legislation that the threat of a filibuster had blocked for so many years. The Gang of 14's pact ended up giving the Republicans everything they desired without having to make a politically unpopular vote, while maintaining the filibuster for a time when they are no longer hold the majority.
That all changed last year with the Roberts and Alito nominations. Some in the Democratic family decided that Bush's high court appointments had to be blocked by any means necessary, and the threat of a filibuster based purely on ideology was openly discussed. This of course prompted the whole showdown over the so-called "nuclear option, with Republicans threatening to change the Senate rules to permanently bar the use of filibuster for Supreme Court nominations if Democrats used the tactic against John Roberts or Alito.
Lieberman and other moderate Democrats then worked with the reasonable elements of the Senate Republican caucus -- the so-called gang of 14 -- to craft an agreement that would protect the right of the minority to filibuster court nominees in the future in extreme circumstances. That was his great sin -- finding a compromise with Republicans that helped Democrats, by preserving the precedent that had been followed for the entire history of the filibuster.
If Lieberman had supported the filibuster, it would not have changed the outcome at all. It would have, though, threatened the agreement he had made, which at the moment was the only thing standing in the way of the nuclear option being triggered and the filibuster being eliminated completely as a check and balance in Supreme Court nominations.
If Lieberman and the other members of the Gang of 14 had broken their word and backed the filibuster, it may have derailed the Alito nomination temporarily. But it would have had disastrous consequences, setting in motion a chain of events that ultimately would have resulted not only in the end of the filibuster as we know it, but in Alito getting on the bench in the end once the Senate rules were changed. Talk about a pyrrhic victory.
And even if Alito had ultimately been confirmed, Democrats would have had the satisfaction of having fought the President, tooth and nail, on the slogan it has used to rally its supporters in every Congressional election in the past 25 years when the GOP has controlled the Presidency: do we want the Republicans to be able to rubber-stamp the judicial picks that President Reagan or Bush makes. It would have been a sign that the Democrats were going to start to fight back, and not take it anymore.
Gerstein is correct that Lieberman's vote for cloture should not be viewed as one that assured the ascension of Samuel Alito to the Supreme Court, not when nearly half of his fellow Democrats followed suit, and not when the lefty blogosphere cared more about the apostacy of a Washington Post ombudswoman than the Alito nomination in the weeks leading up to the vote. If there had been a more concerted effort to rally "netroots" opposition to oppose the nomination, rather than a last-second, half-hearted circle jerk the weekend before, we might have been spared a cloture vote even coming up.