Alito faces bumpy path

November 02, 2005|By MICHAEL GREENBERGER

At first blush, it might appear that history is repeating itself. As was true of John G. Roberts Jr., Samuel A. Alito Jr. appears to be a highly capable, articulate and likable nominee to the U.S. Supreme court.

One might expect that, as was true of Chief Justice Roberts, Judge Alito will be overwhelmingly confirmed.

However, much has changed, not only since the Roberts nomination in July but even in the month since President Bush unsuccessfully proposed Harriet Miers for the court.

Democrats, who split evenly over Chief Justice Roberts, now have greater freedom to oppose judicial nominations.

During his confirmation process, Judge Roberts was able to walk the tightrope between holding the far right's support and not revealing unpopular far-right leanings. The plain words of his conservative writings gave private comfort to the social conservatives, while his Senate supporters successfully dismissed the import of those documents as the views of a young lawyer or as an advocate for clients. His mere two years as a judge afforded little basis for opposition.

Judge Alito will not have this luxury. In his 15 years on the appellate bench, he earned the nickname "Scalito" because his views aggressively mirrored those of Justice Antonin Scalia, the ideological North Star of the far right. That is exactly why those on the right, who forced Ms. Miers' departure, now so openly embrace his selection.

In the most important post-Roe v. Wade decision, Judge Alito's lower court opinion in Planned Parenthood of Pennsylvania v. Casey was well to the right of the Supreme Court majority in its review of that case, including his approval of the since-rejected governmental requirement of spousal consent for abortions.

That opinion and others have led the anti-abortion group Operation Rescue to declare upon Judge Alito's nomination: "Roe's days are numbered." But a majority of Americans does not want Roe overturned.

Finally, Chief Justice Roberts' confirmation meant he was merely replacing his conservative mentor, Chief Justice William H. Rehnquist. Judge Alito would replace Justice Sandra Day O'Connor, whose widespread approval stems from her nonideological pragmatism. On critical issues, she has sided with the more moderate justices. In contrast, the very reason Judge Alito has the vocal support of the far right is that he, unlike Ms. Miers, would ensure a dramatic conservative shift in the court.

Yet even a united Democratic front, and convincing evidence that Judge Alito would undercut Roe, are not likely to jeopardize his confirmation.

Given the threat that Republicans will meet any Democratic-supported filibuster (which would normally require the support of only 41 senators) with a vote to eliminate that procedure by majority vote, the defeat of this nomination outright or by filibuster will require the support of 51 senators in a chamber controlled 55-45 by Republicans.

Three opposition trump cards may lie in wait.

First, as much as the public does not want Roe overturned, it is, as evidenced by its hostility to the federal intervention in the Terri Schiavo matter, even more opposed to the elimination of the general and fundamental underlying constitutional right to privacy.

Because it is a building block for Roe, that broad privacy right is anathema to the far right. Chief Justice Roberts managed to appease enough of those concerned about this important protection by testifying that he found some kind of privacy right, but only in the 14th Amendment's due process clause.

As became clear too late to matter in his hearings, Chief Justice Roberts doesn't agree that the clause assures the kind of broad general privacy right that many Americans now take for granted as a barrier to undue governmental intrusion. Senate Democrats are now prepared to reveal the sophistry of such a contention.

Second, there is a concern even by some Senate Republicans about the court's lack of deference to Congress. One recent study found that since 1994, the court has considered the validity of 64 congressional provisions and Justices Clarence Thomas and Antonin Scalia have voted to strike down 65 percent and 56 percent of those laws, respectively.

Judge Alito has aligned himself with those judges who wish to constrain Congress by concluding in a 1997 dissent that a congressional ban on machine gun sales at trade shows exceeds powers afforded it by the Constitution. This handcuffing of Congress might give pause even to those who would otherwise support Judge Alito.

Finally, since the nomination of Chief Justice Roberts in July, setbacks in Iraq, Hurricane Katrina and the CIA leak indictment have brought Mr. Bush to new lows in approval ratings. It is not a good time for him to be asking for the loyalty of Republicans who might feel constituent pressure not to take the court in an unpopular direction.

The Alito confirmation process, whatever its outcome, should therefore be far more controversial than the Roberts proceedings.

Michael Greenberger is a professor at the University of Maryland School of Law.

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