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Posted by on Oct 31, 2005 in At TMV | 0 comments

Bush Nominates Solidly Conservative Nominee To Supreme Court: The Big Battle Begins? (UPDATED)

President George Bush has nominated conservative judge Samuel Alito to the Supreme Court — giving conservatives the kind of judge they hoped they were going to get after John Roberts was named Chief Justice and likely guaranteeing a Democratic battle:

“Judge Alito is one of the most accomplished and respected judges in America,” Bush said from the White House, with Alito by his side. “And his long career in public service has given him an extraordinary breadth of experience.”

Alito, a former U.S. attorney who has been a judge for 15 years, is considered a favorite of the conservative movement and is Bush’s third pick for O’Connor’s seat.

The full text of Bush’s announcement IS HERE.

UPDATE: White House talking points on Alito are here.

Bush has now fulfilled an oft-stated promise to conservatives and other Americans who voted for him for a direction-change in the court.

But Alito’s nomination is certain to spark a vigorous battle from Democrats since his solid conservative credentials mean the days of the O’Connor swing vote on the court are now over.

So looming questions are now going to be:

  • How total will the Democratic battle against him be? Will it go all the way towards a filibuster? If so, will it trigger the GOP’s long-mentioned “nuclear option” to eliminate filibusters against judicial nominees (something actually sought by some partisans in both parties)?
  • Will it split the “Gang of 14” moderates? If some of the Democrats eventually oppose Alito, would the GOPers agree that this was the kind of nomination that falls under the agreement? At this point, it looks like a split would be likely.
  • What will this do to the President’s remaining three years? Will conservatives, likened to spurned lovers due to the repulsion over the later withdrawn Harriet Miers nomination, quickly forgive and return to the fold (highly likely)? Will the way the nomination is handled and gotten through the Senate effectively obliterate the Democrats and continue to spur the defection of independents from the GOP? And, if so, would it cause previous theories that the center is important to effectively became inoperative in real (e.g. poll) terms?

These are just SOME of the questions that will become more clear as this nomination proceeds beyond the announcement stage. The Washington Post notes that early rumblings from Democrats suggest….a rumble:

Some Democrats, including Senate minority leader Harry Reid (D-Nev.), have threatened to oppose Alito, however. Immediately after the announcement, the liberal activist organization People for the American Way announced the launch of a “massive national effort” to prevent Alito’s confirmation.

However, that’ll only spur on GOPers to embrace Alito: Miers never recovered from her first Kiss of Death — the news that not only Reid could live with her, but he also was one of the people who suggested her. That didn’t suggest to conservatives that she was exactly the kind of judge they’ve sought — an unabashed conservative whom Democrats would oppose due to conservative philosophy.

The Post notes that Bush stressed Alito’s impressive qualifications (Yale Law School, etc) and his experience with Republican administrations (serving in the Reagan administration) and also noted that he may not be as easy to paint as a fire-breathing conservative extremist as some may wish:

Alito’s resume, including his service in the Justice Department during the Reagan administration, is very much unlike that of Miers, who had no appellate experience, and very much like that of Chief Justice John Roberts.

Like Roberts, Alito served during the Reagan administration in the office of the Solicitor General, which argues on behalf of the government in the Supreme Court.

Unlike Roberts, he has opined from the bench on both abortion rights, church-state separation and gender discrimination to the pleasure of conservatives and displeasure of liberals.

While he has been dubbed “Scalito” by some lawyers for a supposed affinity to conservative Supreme Court Justice Antonin Scalia and his Italian-American heritage, most observers believe that greatly oversimplifies his record.

Alito is considered far less provocative a figure than Scalia both in personality and judicial temperament. His opinions and dissents tend to be drily analytical rather than slashing.

In addition, his appeals court record is not uniformly conservative on the sorts of issues that arise in Supreme Court confirmation battles.

If this holds up, this suggests that while the Alito nomination may not be the “home run” that John Roberts proved to be in terms of public acceptance, Alito is not as polarizing a figure as some others who might have been named — and that perhaps the Democrats may have to proceed more gingerly (and skillfully) then at first glance.

An earlier New York Times piece suggests that the Democrats may have a tougher time carving off GOPers on this nomination:

Mr. Reid had already said he would object to the selection of Judge Luttig or Judge Owen. And on Sunday, he did not rule out the possibility that Democrats would try to block a nominee by a filibuster or refusing to close debate and vote. “We are going to do everything we can” to see that the president names “somebody that’s really good,” Mr. Reid said.

But Senator Lindsey Graham, Republican of South Carolina, fired back Sunday, saying that if the Democrats staged a filibuster against Judge Alito or Judge Luttig because of their conservatism, “the filibuster will not stand.”

Mr. Graham’s warning was significant because he played a crucial role earlier this year in helping block a Republican effort to change the Senate rules – known as the nuclear option – so that Democrats could not filibuster judicial nominees. His comments on Sunday indicated that this time, he would support that rule change; Democrats have threatened to retaliate with a battle that could snarl Senate business for months.

The AP has THIS LIST of reaction so far and it’s clearly a divisive nomination, with Republicans and conservatives hailing it, and Democrats and liberals largely blasting it — nowhere near the kind of response to Miers. A few highlights:

“Judge Alito is unquestionably qualified to serve on our nation’s highest court. And on the bench, he has displayed a judicial philosophy marked by judicial restraint and respect for the limited role of the judiciary to interpret the law and not legislate from the bench.” – Senate Majority Leader Bill Frist, R-Tenn….

“The nomination of Judge Alito requires an especially long, hard look by the Senate because of what happened last week to Harriet Miers. Conservative activists forced Miers to withdraw from consideration for this same Supreme Court seat because she was not radical enough for them. Now the Senate needs to find out if the man replacing Miers is too radical for the American people.” – Senate Minority Leader Harry Reid, D-Nev.

“Rather than selecting a nominee for the good of the nation and the court, President Bush has picked a nominee whom he hopes will stop the massive hemorrhaging of support on his right wing. This is a nomination based on weakness, not strength.” – Sen. Edward M. Kennedy, D-Mass.

“Judge Alito is the best there is. The Democrat-controlled Senate recognized these qualities in Judge Alito when it unanimously confirmed him to the court of appeals.” – Wendy Long, counsel for the conservative Judicial Confirmation Network.

“President Bush put the demands of his far-right political base above Americans’ constitutional rights and legal protections by nominating federal appeals court Judge Samuel Alito to replace retiring Supreme Court Justice Sandra Day O’Connor.” – Ralph Neas, president of the liberal People For the American Way.

Other immediate reactions by AP fall into the same general tone on each side.

So it sounds like so far George Bush had a home run with Roberts, a strike out with Miers and a homerun/strike out depending on your party with Alito. He became a uniter (so many opposed her) on Miers and a divider (support along party lines — which means it’s Power Politics time) on Alito. But will Alito prove to be a polarizing or somewhat dividing nomination?

And, in the end, how will this nomination sort out for non-partisans — and in 21st-century politics when you add up the bottom line numbers, will that matter anymore? Stay tuned for a most noisy show in the Senate…and some answers

Samuel Alito (U.S. Gov)
Wikipedia on Samuel Alito
Rate It All Samuel Alito page


— A biting Harry Reid comment: “The President has chosen a man to replace Sandra Day O’Connor,” Reid said. “For the third time, he has declined to make history by nominating the first Hispanic to the court….President Bush would leave the Supreme Court looking less like America and more like an old boys club.”

–People For The American Way is sending out this report on Alito.

Gannett News Service says, basically, GWB has pushed the polarization button:

WASHINGTON – In a rare political do-over, President Bush has ignited an ideological fight for the Supreme Court that he had hoped to avoid.

But it is a fight that many members of his conservative wing have been waiting for. The nomination of federal appeals court judge Samuel Alito will not only potentially affect the court for many years to come, it also could affect near-term politics. The moribund conservative wing of the GOP, an important electoral force in non-presidential elections, is again energized. And liberals have a clear point of opposition. They began denouncing the choice shortly after Bush introduced Alito at the White House early Monday morning.

UPDATE II: Law Prof Jonathan Turley in THIS VIDEO says this is about as far right on the court as anyone will be.


Bull Moose has a post that must be read IN FULL. Part of it:

The Alito nomination is evidence that Mr. Rove is once again riding high in the saddle. The Rovian solution to all of the Administration woes is a to give a hot-button treat to the base and attempt to trick the Democrats into alienating swing traditionalist values voters. Meanwhile, folks will ask, “Scooter who?”.

The politics of polarization has been the governing philosophy of the Bushies. It got them re-elected and it is the only way they know to govern. With this understanding, the Alito nomination makes complete sense.

After Hurricanes Katrina and Libby, the President has now found a safe port in a storm. That may seem to contradict the fact that we are entering the ultimate confrontation in Washington. To the contrary, this is the type of chaos in which the Bushies thrive.The President is now back on what Rove considers terra firma.

Andrew Sullivan:

There will be plenty of time to examine Judge Alito’s judicial philosophy, qualifications, temperament, paper trail, etc. He looks like a qualified candidate to me at first blush, and readers will know that my basic instinct on judicial nominees is to give the president, of whatever party, considerable leeway in their selections. A filibuster, right now, looks way-too-extreme to me. But – even though I guess I may get my fair share of blogads in the process – the prospect of another polarizing culture war battle does not exactly encourage, does it?

Talk Left:
“Hoping to regain the support of his base while provoking a fight that will distract the media from his scandal-ridden administration, President Bush announced the nomination of Judge Sam Alito Jr. to the Supreme Court.”

Diggers Realm: “I’d say this is a direct poke in the eye to the Dems out there and is sure to thrill Republicans after the disaster of the Miers nomination.”

Michelle Malkin has her usual exhaustive roundup (still growing) and writes: “Experienced. Well-thought-of by conservative constitutional scholars. Not a diversity/crony pick. Young. This is a nominee the Right can get behind.”

Stop The ACLU: “Ruling against the ACLU? I think we like him! With the nickname Scalito, after Scalia because of his judicial philophy…this is definitely the kind of judge the president promised. Ruling against the ACLU is a nice bonus, if I may say so. Anyone who will stand up to the ACLU’s socialist agenda has to be a good pick, in my opinion. Already people on the left are whining about pandering.”

Kevin Drum: “Since Alito ruled against abortion rights in one of the most famous cases of all time, Planned Parenthood v. Casey, he ought to be practically a god to the social conservative right. No stealth candidate this time. The movement conservatives wanted a war, and this time they’ve probably gotten one. I guess Bush was itching for revenge after Scooter Libby got indicted.”

Atrios: “Let the games begin.”

The Glittering Eye:

For me the question is whether Alito will be considered “outside the mainstream� by the Democrats in the Senate Judiciary Committee (or an “extraordinary circumstance� by the 14 moderates). With the 2006 midterms approaching and smelling blood in the water with the Libby indictment, my guess is they will. It won’t be a bright day for the Republic.

Perhaps I’m underestimating the statesmanship of my fellow-Democrats. I doubt it. Oh, well. It will be interesting to hear Patrick Leahy and Edward Kennedy lecturing us on the mainstream. Judging by their speeches and voting records they’re not outside the mainstream themselves but they’re certainly in the shallows.

Donklephant: Read the whole post but here’s a tiny part: “Knee jerk reaction coming up, but I think it’s significant to start talking about this right away. As I go over Alito’s record, there’s one case in particular that really doesn’t sit well with me this morning. I’m sure most of you could guess what that is, but it’s Planned Parenthood v. Casey.”

John Cole: “He is young, experienced, credentialed, and qualified. I am pretty sure he is too conservative for most Democrats, and will most certainly be opposed by the advocacy groups on the left, but I do not think he will be opposed by the Gang of 14 and I think conservatives will crawl over broken glass to get him on the bench, so I give his nomination a pretty good chance. I don’t know where I stand on him – I will wait to see what comes out of the next few weeks.”

The Heretik: “NOW THE QUESTION is who is in charge and where are we headed. Will November have a nuclear frost? For the next few hours at least Bush won’t face hot questions on Scooter Libby.”

–Political scientist Steven Taylor has several posts, thinks the nomination is a good one and adds this:

(It) occurred to me as I was driving in and listening to the coverage, that if Alito does make it through the process, that perhaps the perceived need to appoint persons with short paper trails (that started post-Bork) will go the way of the dinosaur, which is where it belongs. We should all be big enough boys and girls to handle a candidate who has a true public record. The Supreme Court should not be the domain of the stealthy. Indeed, it was the perceived need for such stealth that did, at least in part, lead to the Miers nomination. Perhaps Miers, by being the anti-Bork in so many ways, will have set in motion a correction that has been needed in the system for almost twenty years, i.e., a return to the ability of presidents to appoint candidates with lengthy and distinguished records.

Proud To Be Canadian: “Probably should have made this choice to start with, saving tons of time and grief…. “

Left In The West:

It is true as the nominee says that the role for the court was intended to be limited, but a limited role of the judiciary is not what he really wants. He wants to see American precedents overturned, and Scalia’s numerous dissents (not just in 5-4 decisions) turned into majority opinions for the court. These things would undoubtedly change everyday life in America, and once a justice moves from restraint to activism the balance shifts also: would this change in everyday life be good or bad for America now? I sympathize with real restraintists on the point that this is rarely a question for the courts. In the coming weeks we may find Judge Alito to be may be many things, but I doubt that true restraintist will be counted among them by anyone that is not blinded by neo-conservative judicial propaganda.

Blogs For Bush has a huge roundup of links to stories, posts and trackbacks — and links to a petition to the Senate group of Moderates arguing that this is not a nomination that fits under the category of one that can be filibustered.

Crooks And Liars’ John Amato has a round up and writes:

This was a purely politically motivated pick so Bush could save face with his base. Not unexpected after all of his problems. Listening to all the hypocrites now say he deserves an up or down vote after they savaged Harriet Miers is laughable, but they have short memories. I thought Miers was a crony pick of the highest order, but as I’ve often been told by those wanting to put an extreme ideologue on the bench: “elections have consequences.” They only have consequences when Bush picks the person of their choice.

Professor Bainbridge (who opposed Miers):

I think it’s a great choice. Alito is everything Harriet Miers was not: An experienced jurist. Prosecutorial and government experience. Relatively young (55). Stellar educational credentials (Princeton and Yale). A committed conservative whose track record earned him the nickname Scalito.

Daily Kos has a bunch of posts. From one of Armando’s:

Let’s be clear what has happened here – George W. Bush was simply not allowed by the Extreme Radical Right Wing of his Party to choose the person he wanted for the Supreme Court. It is that simple. Understand, it was NOT the Senate that blocked his nominee – which would have been in keeping with the U.S. Constitution – it was the Extreme Radical Right Wing of the Republican Party which blocked an up or down vote on Harriet Miers.

Unremarked is the fact that Bush’s first choice for the Supreme Court was always Alberto Gonzales. The Extreme Radical Right Wing of his Party told him in no uncertain terms that Gonzales was unacceptable to them. It so happens I saw Gonzales as unacceptable as well, for different reasons (torture). But the bottom line is President Bush was prohibited by the extreme elements of his own Party from choosing his own nominee.

Ann Althouse:

I wanted President Bush to nominate someone like John Roberts, and I think Samuel Alito in fact deserves to be considered a stronger nominee than Roberts. He has the impressive educational background followed by a stellar career before becoming a judge, but he also has a much longer record as a judge — 15 years to Roberts’s 2. I am glad to see Bush not shy away from a person with a real judicial record. The fear of putting up a nominee with actual cases to peruse puts too many fine candidates off limits. To see Roberts as the ideal nominee is to prefer a judicial mystery, someone who is hard to know and hard to attack. With Alito, we can read his cases.

Right Pundit: “It will be interesting to see just how far off the cliff the democrats decide to take their bus. Chuck Schumer has already decided that he is willing to be publically stupid by arguing Judge Alito would seek to undo what Rosa Parks accomplished (via Hugh Hewitt). If the democrats follow Senator Schumer’s lead, the Republicans may end up with 60 senators after the next election.”

–Headline in Independent Conservative:”Bush picks Samuel Alito for the US Supreme Court! Good job! No more swing vote!”

Running Scared’s Jazz Shaw, in a painstakingly must-read-in-full thoughtful post, concludes that Alito “may’ not be the nightmare for liberals that some fear.” A small, edited taste (you MUST read it all):

I have spent some additional time poring through decisions, both majority and dissenting, written by Samuel Alito, and some early impressions are forming….From me, you might be expecting a knee-jerk, “fire up the torches and grab the pitchforks” type of response to this nomination, but I think there’s more here than meets the eye.

Will he be a partisan instrument for the far right wing? I won’t say there’s no grounds to worry on that score – he could well turn out to be the next Thomas or Scalia. But there still may be some hopeful signs. He’s apparently not someone who you can always count on to rule for the conservative “cause” regardless of the law. And some of his decisions which may pain progressives and liberals seem to have been based on legal principles which you may find hard to dispute. If you’re expecting him to have just “toed the line” to restrict the rights of women, gays and minorities and force Jesus into the schools and ban the teaching of evolution, you may be in for a surprise….(READ THE REST TO FIND OUT)


The chief advantage that Alito has over Miers as a nominee – actual qualifications, a record of decisions illustrating a judicial philosophy – heartens the Right even as it galvanizes the Left. This is not John Roberts redux; Alito’s bonafides mark him as an ideological twin to Antonin Scalia – hence the nickname ‘Scalito’ – and it’s arguable that the high court already has one more Scalia than it needs. This is the vote, the swing vote, the one vote after which conservatives have lusted like Gollum after the Ring, and now it seems within their grasp. But it won’t be theirs without a fight, as there are many on the Left who have awaited this moment….The storm season in American politics has officially begun. Better get your sweater; it looks like a nuclear winter.

–The Volokh Conspiracy’s David Bernstein:

There will be, if Alito is confirmed. This is an extraordinary development. It was, let’s recall, only forty-five years ago that JFK’s Catholicism was a major issue in a presidential campaign. As Ken Kersch and Philip Hamburger have shown, anti-Catholic sentiment played a large role in the development of modern establishment clause jurisprudence (in part through the influence of that old KKKer, Hugo Black). The leading separationist group after WWII was known as Protestants [now, Americans] United for the Separation of Church and State.

Irish Pennants:

If Harriet Miers was a foul ball, the nomination today of Samuel Alito to the Supreme Court is a home run of the titanic proportions of the one Albert Pujols hit against the Houston Astros in the playoffs. The excited responses from conservative groups and in the lengthy posts on and Free Republic indicates that the wounds inflicted during the Miers wars are healing fast. The base is coming together and is ready to rumble on the side of the president against the Democrats.

The Alito nomination also pushes off the front page the controversy over the indictment of Scooter Libby, the vice president’s chief of staff, on charges of lying to the grand jury about from whom he learned that Joseph C. Wilson’s wife worked for the CIA.

Right Wing News’ John Hawkins:

Remember when Bush promised to give us judges like Thomas and Scalia? Well, Alito is so much like Scalia that some people actually call him, “Scalito.” The only way Bush could have gotten a candidate more like Scalia was to clone him….

…Folks, this nomination is the home run that John Sununu promised back then and the ball isn’t just about to “leave earth orbit,” it has already left orbit, smashed through a meteor, bounced off an alice space cruiser, and crashed into the moon where it left a crater the size of Grand Canyon. George Bush, thank you for selecting Alito. Sam Alito, thanks for accepting. Now, it’s up to conservatives to fight for Sam Alito and make sure that he gets onto the court…

Fruits & Votes has an intriguing analysis that should be read in full. A small part 4 U:

What this all means is that we are back where we were some months ago: A possible looming showdown between the party with the (maufactured) majority of seats and the party with the minority….

I still think the right has too weak a hand to prevail in this fight, and that this weakness is the reason why Bush tried to get through a “stealth� nominee in the first place. But the right sure played its hand in getting Miers out and obtaining a subsequent candidate to a large “degree more acceptable to them.�

The next phase will be determined by how united the Democratic party is, and whether it is prepared to play its hand and prevent a President with public approval around 40% from rewarding his base (which is far narrower than that 40%)

Ed Morrissey predicts that in the end the Democrats won’t do a full court press on Alito, since he’s not as unacceptable to them as some others — and they will keep in mind that other Supreme Court seats may open up. Part of what he says:

I expect that the Democrats will get 30-35 votes in favor of a filibuster once Alito gets out of committee. If they do consider a filibuster, too many of them will realize that Stevens might get replaced during this term (he’s 85 years old). They need that potential stop on Senate business to protect a genuinely liberal seat on the Court — and enough of them won’t agree to tossing it aside before the 2006 elections, when they might narrow the gap in the Senate, in order to keep Alito off the bench. They also won’t want to fight over obstructionism again during the next cycle, or the Democrats might well lose more Senate seats in the midterms. Expect Alito to get confirmed, 65-35.

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