With Senate math against them, Democrats see scant prospect of blocking Judge Samuel Alito's rise to the Supreme Court - a final call to be made in a caucus meeting Wednesday.
But their push for a party-line vote on Alito signals another prize in this week's confirmation debate: a possible takeover of the Senate in next fall's elections.
While liberal groups critical to the the Democratic base are disappointed with the probable confirmation of Judge Alito, Democrats are eager to mount an aggressive rhetorical case heading into this week's final vote - and coming midterm elections.
"This is a nomination that threatens the rights and liberties of Americans now and for generations to come," said Sen. Patrick Leahy (D) of Vermont, the ranking Democrat on the Senate Judiciary Committee in his opening salvo against the nominee Tuesday. On a 10-8 party-line vote, the panel voted to send the Alito nomination to the full Senate.
Senator Leahy was one of 22 Democrats who voted to confirm John Roberts as chief justice in September. In a far more contentious confirmation, 11 Democrats voted with Republicans to confirm Clarence Thomas to the Supreme Court in 1991. The vote to confirm Mr. Alito is expected to draw even fewer Democratic votes.
So far, the only Democrat to publicly back Alito is Sen. Ben Nelson of Nebraska. Six Democrats who voted for Justice Roberts have already announced their opposition to Alito.
In a week billed as a "prebuttal" of the president's State of the Union Address Jan. 31, Democrats are rallying around a few key themes: privacy rights, civil rights, and the dangers of unchecked presidential power.
"We'll use the debate to set the bar for the president's [speech] and set some themes for the 2006 elections," says Senate Democratic spokesman Jim Manley.
As President Bush takes his case for domestic eavesdropping without a warrant to the American people in a series of events this week, Democrats are using the Alito debate to raise objections. Before voting Tuesday, Democrats on the Senate Judiciary panel zeroed in on Alito's statements in support of executive powers, especially in a time of war.
"In times of constitutional crisis, the Supreme Court can tell the executive it has gone too far, and require it to obey the law," said Sen. Russ Feingold of Wisconsin, another Democrat who voted for Roberts but who opposes Alito. "Yet Judge Alito's record and testimony strongly suggest that he would do what he has done for much of his 15 years on the bench: defer to the executive branch in case after case at the expense of individual rights."
For the small army of interest groups opposing the nomination, the Democrats' war of words falls short of the all-out battle they had expected. Some say they still hope Democrats will mount a filibuster against the nomination, which requires 60 votes to break. Republicans have 55 votes in the 100-member Senate.
"Many of these Democrats ran on the promise to fight with any means possible to bar someone like Samuel Alito," says Jonathan Turley, a law professor at George Washington University. "Yet, the Democrats could not even field their members to a filibuster. That will leave a view with many Democratic voters that the current Democratic leadership is ineffectual."
In a preemptive move to break a possible filibuster, Senate Republicans have threatened a change in Senate rules that would ban that option in the case of judicial nominations. Last May, a bipartisan group of 14 senators agreed to vote against either a filibuster or a rule change in a bid to defuse the crisis.
Republicans say Alito is one of the most highly qualified judges ever to come before the Senate and should be confirmed. "Many of Judge Alito's detractors oppose his nomination simply because he will not promise to impose a liberal agenda from the bench," said Sen. John Cornyn (R) of Texas, before Tuesday's vote.