The Next Antonin Scalia
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.
Unlike with Miers, which saw Republicans battling their own and Democrats remaining largely silent, Democrats and progressive interest groups have already pounced on Alito. "Conservative activists forced Miers to withdraw from consideration for this same Supreme Court seat because she was not radical enough for them," Reid said Monday. "Now the Senate needs to find out if the man replacing Miers is too radical for the American people."
And Senate Judiciary Committee Ranking Member Patrick Leahy, D-Vt., who along with Reid wrote Bush a letter Friday asking him not to nominate a divisive candidate, called Alito "a needlessly provocative nomination. Instead of uniting the country through his choice, the president has chosen to reward one faction of his party, at the risk of dividing the country," Leahy said.
Ralph Neas, president of the liberal People for the American Way, said Monday that with Alito, Bush has "guaranteed ... a bitter fight." Neas said the group would mobilize its 750,000 members and work with other organizations opposed to Alito to try to defeat his nomination. "We are going to make sure that Americans understand what is at stake," Neas noted.
What could make Democrats' case slightly more difficult, however, is that a Democratic-controlled Senate confirmed Alito for his current position on the U.S. Circuit Court of Appeals for the Third Circuit when Bush's father nominated him in 1990. Before joining that court, Alito served as U.S. attorney for the District of New Jersey, as deputy assistant attorney general for President Reagan and as assistant to the solicitor general, also in the Reagan White House.
Happy with Alito, Republicans may well argue that Bush should be given deference in choosing a court nominee. On Sunday, Graham told CBS that Bush pledged as a candidate last year to nominate conservatives to the court and "you're going to get a strong conservative." Of course, it will be up to Democrats to point out Republicans' different standards on the Alito and Miers' nominations. Democrats so far appear to be focusing their opposition to Alito more on Bush's decision to succumb to conservative pressure than on Alito's qualifications.
Still, Alito's positions on issues, such as abortion, will be key in the upcoming fight. On several issues, Alito has found himself at odds with positions taken by the majority of the Supreme Court. In Planned Parenthood of Southeastern Pennsylvania v. Casey, Alito argued that women should be required to notify their husbands before seeking an abortion. He also said that Congress should not be able to force state employers to comply with the Family and Medical Leave Act by applying damages when the companies don't follow the law, according to a preliminary review of Alito's record by People for the American Way.
Given that Alito has a lengthy record -- unlike Roberts, who served for only two years on an appellate court -- Democrats will have ample evidence to draw from in questioning Alito about his positions and whether he will uphold Supreme Court decisions, such as Roe v. Wade.
One person likely to be disappointed with Bush's choice is O'Connor, who had pressed Bush to nominate a woman to succeed her. But after the fumbled Miers nomination, the first Supreme Court withdrawal since 1987, Bush opted to find a candidate who was guaranteed to please his core supporters rather than worrying about other considerations. A CNN/USA Today/Gallup Poll conducted this weekend showed that just one in seven of those surveyed thought Bush absolutely needed to nominate a woman for the post. More important to voters, the survey showed, was that Bush name someone with judicial experience. Alito has that. But judicial experience won't be enough to stop a Senate showdown and, possibly, bring on a filibuster.