clock menu more-arrow no yes

Filed under:

Fight looms over court choice

Conservatives hail, Democrats assail nomination of Alisto to Supreme Court

WASHINGTON — President Bush on Monday nominated a federal appeals court judge with unquestioned conservative credentials to fill the vacancy on the Supreme Court, satisfying his supporters on the political right but inviting a knockdown battle with Democrats.

Bush's choice, Samuel A. Alito Jr., is a 15-year veteran of the Philadelphia-based U.S. Court of Appeals for the 3rd Circuit, where he has participated in 3,500 cases and written about 300 opinions. He was named to that job by Bush's father.

Bush moved quickly to replace a failed nomination, that of White House counsel Harriet Miers, who withdrew as a Supreme Court pick on Thursday after she ran into harsh opposition from conservatives. Announcing his decision at the White House with Alito by his side, the president called Alito "one of the most accomplished and respected judges in America."

If confirmed by the Senate, the 55-year-old Alito would replace retiring Justice Sandra Day O'Connor, who has been a centrist and the swing vote in many closely decided cases.

Conservatives welcomed the choice. "President Bush has hit a home run," said Sen. Trent Lott, R-Miss.

But liberal interest groups and some Democrats voiced immediate concerns, particularly because the choice may prove pivotal on the high court's future decisions on issues from abortion to civil rights and civil liberties.

"I would have hoped the president would have filled Sandra Day O'Connor's seat with a person in line with her philosophy," said Sen. Mary Landrieu, D-La. "This is a needlessly provocative nomination," said Sen. Patrick Leahy, D-Vt., the senior Democrat on the Judiciary Committee.

Landrieu and 13 other senators from both parties joined in a truce earlier this year to head off a threatened filibuster over Bush's court nominations. They declared that they would not support such roadblock tactics unless "extraordinary circumstances" required it. For those who agreed to the deal, the question now is whether the Alito nomination meets that test.

A Republican member of the so-called "Gang of 14," Sen. Lindsey Graham of South Carolina, signaled that he would not support a filibuster. If Democrats try, it "will create a Middle East style of politics in the Senate," he said. But, asked about the possibility of a filibuster, Senate Minority Leader Harry Reid, D-Nev., said: "I wouldn't take it off the table."

Bush seemed to acknowledge the delicacy of the situation when he introduced his nominee. He said Alito "has a deep understanding of the proper role of judges in our society. He understands that judges are to interpret the laws, not to impose their preferences or priorities."

But the president's choice of Alito was made from what appeared to be a post-Miers position of political weakness and represented an effort to restore solidarity with his most conservative supporters.

It was those conservatives who helped bring down the Miers' nomination, and whose support Bush needs as he negotiates the shoals of an unpopular war in Iraq, criticism over his administration's response to hurricane disasters and a CIA leak scandal that resulted in the indictment of Vice President Cheney's chief of staff, Lewis "Scooter" Libby, on Friday.

Under pressure from the right, Bush gave up the chance to bring diversity to the high court. Both the retiring O'Connor and Bush's wife, Laura, had publicly recommended that he choose a woman.

Bush "missed a golden opportunity to put a woman on the court, or a Hispanic," Reid told reporters. With his Ivy League education and long court experience, Alito is "another person who just fits the mold" of those already on the Supreme Court, he said. Instead, Reid said, Bush chose "to placate the radical right."

Lori Shaw, a law professor at the University of Dayton Law School in Ohio, said she was disappointed. "There should be a diversity of viewpoints on the court. I don't think you should say this is the women's slot," she said, but "there are vast numbers of women who are sitting on the bench today who have all the qualifications you would want in a judge. I'm struggling to understand why that didn't happen."

For Bush, a bruising confirmation battle might not be all bad. It could drive the indictment of Libby from front pages. And seeing the president fight for a conservative judge might mitigate the worries of conservatives worried about rising federal government spending or the progress of the war in Iraq.

Sen. Orrin Hatch, R-Utah, warned against a filibuster. "Democrats have to be very careful," he said. "If (Alito) is treated badly, they're in big trouble."

Alito's name had long been near the top of Bush's list of potential Supreme Court picks. Bush interviewed him at the beginning of the search process after O'Connor announced her retirement plans July 1. White House chief of staff Andrew Card interviewed Alito on Thursday and Friday, and Bush called him on Friday.

The president offered the job to Alito at 7 a.m. Monday and made the announcement in the White House shortly after 8 a.m.

In contrast to earlier choices, Democrats were left out of the loop. Asked whether he'd been consulted, Reid said, "Zero. Absolutely nothing." When Card called to inform him of the choice on Monday morning, Reid had already heard it on the news.

The reactions of interest groups on the political right and left signaled that the much-anticipated battle among such organizations over O'Connor's successor might finally begin.

Within minutes of the announcement, liberal groups such as People for the American Way, Planned Parenthood and the Alliance for Justice announced battle plans.

"You name it, we'll do it" to oppose Alito, said Nan Aron, president of the Alliance for Justice. E-mail and letter-writing campaigns are in the works, as well as television ad campaigns, with the focus on states with moderate senators from both parties who in the past have been supportive on issues such as abortion rights.

At the same time, conservative groups such as Progress for America, the Committee for Justice and the American Center for Law & Justice were quick to offer their enthusiastic support. They, too, have dissected Alito's judicial opinions and legal writings and think he would be just the kind of Supreme Court justice they've wanted.

"President Bush promised that he would nominate justices in the mold of Justices (Antonin) Scalia and (Clarence) Thomas. In choosing Judge Alito for the high court, President Bush has done just that," said Jay Sekulow, chief counsel to the American Center.

After largely sitting out the confirmation of John Roberts for chief justice, and leaving the Miers battle to intramural squabbling on the right, both sides appear ready to engage.

"Interest groups are going to come out strong on this nomination" because Alito has a long, clear record as a conservative judge, says Michael Gerhardt, professor of constitutional law at the University of North Carolina School of Law. "I don't think that's necessarily good. The word I would use is regrettable. It will be all about catch phrases and code words, not an elevated debate about the law."

"We're going to have a huge fight, which is going to come down to a fight over abortion," said Jim Duffy, a Democratic political strategist.

"People who are worried about paying high gas prices are going to be asking, 'Where are my interests in this?' It's a huge Washington issue, but much ado about nothing for the rest of the country."

Alito so resembles Scalia in his judicial outlook that he has been tagged with the nickname "Scalito." But while the two share conservative credentials, Alito lacks Scalia's fiery, provocative style. In 15 years on the 3rd Circuit, he has been a reliable vote for a narrow interpretation of constitutional rights.

The Alito opinion likely to generate the most debate in the coming weeks came in a 1991 abortion rights case. Alito was the sole vote to uphold a Pennsylvania law requiring women to notify their husbands before obtaining an abortion. Alito's dissenting view was later rejected by the U.S. Supreme Court.

Explaining why the spousal notification should be upheld, Alito wrote that it did not put a substantial obstacle in the path of a woman seeking to end a pregnancy. He said it "merely requires a married woman ... to certify that she has notified her husband."

Alito also emphasized that the requirement would not have great practical effect because most abortions in America are sought by unmarried women and most married women who want an abortion tell their husbands.

When the Supreme Court rejected that view, it said the focus should be on the women who would fall under the spousal notification requirement, not those who would not. The majority said state regulation of abortion has a far greater impact on the pregnant woman's personal liberty than it does on a husband's interests.

Alito's narrow view of court precedent on abortion was repudiated by the high court majority, including Reagan appointees O'Connor and Anthony Kennedy and David Souter, an appointee of Bush's father.

The opinion is likely to be a flash point in of Alito's confirmation hearings, which Reid said could not begin before next year.

On the bench, Alito has also narrowly interpreted the reach of anti-discrimination laws and diminished the ability of aggrieved victims to get into court.

If Alito is confirmed, he would become the fifth Catholic on the court, joining Chief Justice Roberts and Scalia, Kennedy and Thomas. In 1996, the court for the first time in its history was not dominated by a Protestant majority (when Thomas disclosed that he had rejoined the Roman Catholic Church). Justices Ruth Bader Ginsburg and Stephen Breyer are Jewish.

Alito's religion was not an issue Monday, but given the religious divisions that have marked the United States, a Catholic majority could be cast as an indication of how far the nation has moved on religious freedom.


Contributing: Judy Keen, Kathy Kiely, Mark Memmott.