by John M. Curtis
(310) 204-8700

Copyright November 16, 2005
All Rights Reserved.

aking the rounds in the U.S. Senate, President George W. Bush's pick to replace Associate Supreme Court Justice Sandra Day O'Connor, Samuel A. Alito Jr., finds himself in the crossfire of today's bitter partisan divide. In the pre-Clinton era, Alito would be a shoe-in, convincing skeptical Democrats that he had no intention of reversing Roe v. Wade, the controversial 1973 ruling legalizing abortion. Only seven years after the ruling, Alito applied for a job in Reagan's White House, known for its vocal distaste of Roe v. Wade. Looking under every rock, the senate found a 1985 memo connected to a job application in which Alito opined that the Constitution did not afford women the right to abortion. Democrats have scratched to find any tangible reason to oppose Alito's confirmation. Alito told Sen. Diane Feinstein (D-Calif.) his views reflected his wish to get hired.

      Since Bush's first nominee Harriet Miers withdrew her name Oct. 27 due to fierce opposition from the right wing, speculation has centered on whether Bush would (a) capitulate to ultra-conservatives and (b) seek to reverse Roe v. Wade. Democrats, for the most part, supported Miers' nomination, hoping to avoid another right wing ideologue personified by Associate Justices Antonin Scalia and Clarence Thomas. Democrats hoped for another swing vote expressed in the voting record of Sandra Day O'Connor. When Bush picked Alito, it was only natural for the minority party to fear the worse. While Alito came with incontestable credentials, conservatives sought assurances he'd stick to the party line. “First of all, it was different then. I was an advocate seeking a job. And that was 1985,” Alito told Feinstein, reassuring her that his personal opinions wouldn't impact his legal rulings.

      Graduated from Princeton in 1972 and Yale Law School in 1975, Alito has had a remarkable career in government service, serving as Asst. U.S. Atty. for the District of New Jersey [1977-81], Asst. U.S. Solicitor General [1981-85], Deputy Asst. U.S. Atty. General [1985-87], U.S. Atty. District of New Jersey [1987-1990], and finally appointed by former President George H.W. Bush to the 3rd Circuit Court of Appeals [1990]. While pro-life groups hail Alito's 1991 dissent requiring women to notify their husbands before abortions, he has avoided opining about controversial issues. Right wing fanatics haven't found too much to pop corks about other than a few memos and controversial legal opinions. Like recently confirmed Chief Justice John G. Roberts Jr., Alito shows the kind of judicial temperament not easily stereotyped. Right wing zealots won't like his reluctance to play politics.

      Alito is very cognizant of the difference between working a political job and serving on the court. “I'm now a judge, you know. I've been on the circuit court for 15 years. And it's very different. I'm not an advocate. I don't give heed to my personal views. What I do is interpret the law,” Alito told Feinstein, responding to her concerns about past statements opposing abortion. Alito, like Roberts, subscribes to judicial precedent known as “stare decisis,” accepting established legal precedents as Roe v. Wade. Alito won't present a good target to Democrats as Ronald Reagan's 1987 appointment of right wing ideologue Robert H. Bork, whose trail of controversial public opinions upended his nomination. Few people—including Democrats—doubted Bork's credentials or legal brilliance. Alito promises to display a far more genteel disposition at confirmation hearings.

      Unlike Justices Scalia and Thomas, Alito refuses to serve as a poster boy to the conservative cause. He represents the same kind of threat as Associate Justices David Souter or Sandra Day O'Connor, whose judicial opinions flow from sound legal arguments, not a blood-oath to an abstract cause. Alito's attachment to objective scholarship makes it difficult to predict on which side of issues he's likely to fall. Neither liberals nor conservatives will find it easy to pigeonhole the 55-year-old jurist whose personal opinions don't enter into his legal rulings. Calling Alito “one of the most conservative federal judges in the country,” Sen. Minority Leader Harry Reid (D-Nev.) played fast and loose, prompting concerns about judicial filibuster. Reid jumped the gun, not taking the time to get to know Alito before putting senate Republicans on the defensive.

      Senate Majority Leader Bill Frist [R-Tenn.] should take a deep breath before threatening his “nuclear option,” changing the rules to prevent a judicial filibuster. “If members of the Democratic minority persist in blocking the vote on Alito's nomination, the Senate will have no choice” but to change the rules. Frist has enough problems dealing with a Securities and Exchange Commission investigation looking into insider stock trading to take controversial actions. Everyone wants Alito to get an up-or-down vote, without changing traditional rules that could boomerang when the senate changes hands. While nicknamed “Scalito” or “little Scalia,” Alito is anything but a yes-man for either side. Looking at his record, it's clear that he'll call the issues as he sees them, based on solid legal arguments. With all the problems at the White House, Bush got this one right.

About the Author

John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.

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