The Next Antonin Scalia

By Mary Lynn F. Jones, AlterNet. Posted October 31, 2005.

Anxious to regain some of the political footing he lost last week, President Bush nominated conservative Appellate Court Judge Samuel A. Alito Jr. to the Supreme Court Monday morning.

In naming the 55-year-old Alito, Bush called him "one of the most accomplished and respected judges in America" who "understands that judges are to interpret the laws, not to impose their preferences or priorities on the people." Bush also called on the Senate to vote on Alito's nomination before the end of the year.

Alito has the professional credibility that both Republicans and Democrats indicated was lacking in White House Counsel Harriet Miers, who withdrew her name from consideration last week to succeed retiring Associate Justice Sandra Day O'Connor. Like Chief Justice John Roberts, Alito has served as an appellate judge, argued cases before the Supreme Court, worked in the Reagan administration and served as editor of his law school journal.

His 15-year conservative record as an appellate judge meant that even before the nomination became official, Alito -- nicknamed "Scalito" or "Scalia-lite" for his conservative opinions -- was drawing fire from Democrats on Sunday political talk shows; Senate Minority Leader Harry Reid, D-Nev., told CNN that Alito's nomination would "create a lot of problems." But it also pleased conservatives who helped to bring down Miers, such as Concerned Women for America, an anti-abortion group with whom the White House consulted this weekend.

Alito's nomination comes as Bush tries to recover from arguably his worst week as president. Along with Miers' withdrawal, the number of U.S. deaths in Iraq passed the 2,000 mark and Vice President Cheney's Chief of Staff Scooter Libby resigned after being indicted on five counts of obstruction of justice, perjury and giving false statements. Naming Alito to the court allows Bush to try to change the conversation in Washington as Special Counsel Patrick Fitzgerald continues to determine whether Deputy Chief of Staff Karl Rove should be indicted.

It's also a way to shore up support among his base at a time when Bush's public approval numbers are at their lowest in his presidency. Because of Bush's weakness, Democrats find themselves in a stronger position to oppose Alito than Roberts, who the Senate confirmed with 78 votes.

Despite Bush's request for speedy action by the Senate, the timetable for Alito's confirmation is in question for several reasons. The first is that Senate Majority Leader Bill Frist, R-Tenn., has said he would like the chamber to recess for the year by Thanksgiving, an already tight deadline given the Senate's legislative agenda. Given that it took about two months for the relatively smooth nomination of Chief Justice John Roberts to make its way through the Senate, seating Alito on the court by the end of the year could be difficult. O'Connor has offered to stay on the court until her successor is confirmed, diminishing the need for a quick confirmation.

On Monday, Frist said he would consult on scheduling with Senate Judiciary Committee Chairman Arlen Specter, R-Pa., noting, "If it's possible to act, I will call the Senate back in to vote, up or down, on the Alito nomination." But Specter noted Monday that Alito has taken part in about 3,500 cases and 300 opinions, which will likely take awhile for the committee to wade through.

Republicans would like to push the nomination through quickly in part to give Democrats less time to build opposition and in part to replace O'Connor, the critical swing seat on the court. The longer O'Connor remains on the court, the more cases she will hear and potentially be able to cast the deciding vote.

The second factor is whether Democrats will filibuster Alito's nomination. Unlike the Roberts or Miers nominations, the White House did not talk with a large number of senators beforehand in order to name Alito quickly. On Sunday, Sen. Lindsey Graham, R-S.C., a member of the so-called bipartisan "Gang of 14" -- which hammered out an agreement not to filibuster any nominee who does not trip the "extraordinary circumstances" clause of its agreement -- ruled out the possibility of filibustering Alito's nomination, saying it would "not stand." The group is likely to meet this week to discuss Alito. But Specter admitted on Sunday he is "very worried" about a filibuster showdown, which could stall Senate business for weeks.

Mary Lynn F. Jones is a Washington D.C.-based writer.

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