Alito Nomination May Bring Long-Anticipated Judiciary Fight

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Published November 01, 2005

| FoxNews.com

Just hours after President Bush nominated federal Judge Samuel Alito (search) to the U.S. Supreme Court on Monday, partisan warriors on Capitol Hill began preparing for a looming dogfight over the conservative jurist.

In anticipation of what the White House hopes will be December confirmation hearings, Democratic lawmakers braced themselves for battle as a chorus of hallelujahs rang out from the religious right.

"This is a needlessly provocative nomination," said ranking Senate Judiciary Committee Democrat Patrick Leahy (search) of Vermont. "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."

"Any nominee who so worries the radical left is worthy of serious consideration," countered James Dobson, founder of Focus on the Family.

Within hours of the president's nomination, Senate Majority Leader Bill Frist (search) began pushing for confirmation hearings to be held before the Senate adjourns for its winter recess.

"I wanted to formally welcome the judge to a process that will play out here over the next several days and next several weeks as we work up to an up-or-down vote for this outstanding nominee," Frist said during a morning photo-op with Alito. "Over a period of the next several weeks, we will gather the papers for, have hearings and then move toward that up-or-down vote on the floor of the Senate."

But Senate Minority Leader Harry Reid (search), whose consent on timing will be necessary if Republicans hope to get any Democratic support, sought to slow down the accelerating snowball.

"I think it's very unlikely that we'll be able to do hearings by the end of December. We're not going to be rushed into anything," Reid said late Monday.

Democrats are going to need some time to gather any opposition they want to muster, since lawmakers are unlikely to be able to oppose the 15-year 3rd Circuit Court of Appeals judge on his intellectual heft.

"Judge Alito brings with him a very extensive record, a so-called paper trail. He guestimates that he has decided or was involved in the decisions of some 250 cases a year over 15 years. That would add up to 3,750 cases. He estimates that he has some 300 opinions. That's a fair amount of work to review," said Senate Judiciary Committee Chairman Arlen Specter, R-Pa.

The 55-year-old judge has the respect of judiciary colleagues across the political spectrum. And while Bush's previous choice to replace retiring Justice Sandra Day O'Connor (search), White House Counsel Harriet Miers (search), was slammed by the right as underqualified and an unknown quantity, questions of competence and agility with constitutional conundrums are not likely to dog the judge.

And as it went with Chief Justice John Roberts (search), Alito's legal acumen is expected to dazzle during his confirmation hearings, fans said.

"He will impress everyone with his intelligence, his experience and with the kind of person he is," said Katherine Pringle, a partner at New York's Friedman Kaplan Seiler & Adelman LLP who clerked for Alito in 1993-1994. "He's not a shouter. He will take the time to answer everyone's questions and to address people's concerns."

"We've got John Roberts, a brilliant man. We've got Antonin Scalia (search), a brilliant judge. And now with this new selection ... he's a brilliant judge," Pat Robertson of the Christian Broadcast Network told FOX News. "The conservatives are going to have intellectual firepower that's going to last for decades."

That being the case, the brewing battle over Alito's nomination is sure to hinge on matters of ideology — and with the looming midterm elections, the confirmation process could well be one of the most vicious in years.

"The question will be is he too conservative or not. Let there be no mistake about it: he is very, very conservative," said defense attorney Lawrence Lustberg, who has argued before Alito in the 3rd Circuit and praised him as "thoughtful and generous."

But perhaps even more difficult for Democrats, those who know Alito say that the nickname "Scalito," a slight meant to link the judge to Justice Scalia, doesn't really fit.

"He will be a consistent and strong conservative voice on the Supreme Court. That said, he's very respectful of colleagues and other points of view. He's someone who deals carefully with each issue that faces him, as opposed to someone who comes to the court with a particular agenda," Pringle said. "I think he is conservative but not out of the mainstream. I don't see him as an ideologue like Antonin Scalia or Clarence Thomas."

In addition, Alito has gone both ways on abortion cases. Pro-choice Democrats and women's groups expressed concern over the judge's lone argument that a spousal-notification provision should have been upheld in 1991's Planned Parenthood v. Casey (search).

On the other hand, in 2000, Alito joined the majority opinion in striking down a New Jersey ban on late-term abortions. Alito wrote in a concurring opinion that he was bound by Supreme Court precedent to vote against the ban, which did not include an exception for the mother's health.

"He's clearly been in cases where the results are ones that strongly progressive liberals don't like, but there are an equal number of cases where he applies the same methodology and gets results progressive liberals will be very comfortable with," said former clerk Clark Lombardi, who teaches at the University of Washington School of Law.

Late Monday, Specter said he was assured by Alito that the nominee values stare decisis, or letting precedent stand, and backs the right to privacy under the Liberty clause of the U.S. Constitution as cited in Griswold v. Connecticut (search).

Alito views precedent on "a sliding scale, and that the longer the decision was in effect and the more times that it had been reaffirmed by different courts, different justices appointed by different presidents, it adds extra-precedential value," Specter said.

Unless Alito has skeletons in his closet, some Democrats may find themselves having nothing to vote against, say court observers.

"I think they'll have a difficult time getting a filibuster. You have to be realistic here," said Jay Sekulow, chief counsel of the conservative American Center for Law and Justice, noting that Alito was unanimously confirmed by the Senate for the court of appeals.

"He is very, very well respected. So there is no 'extraordinary circumstance' here," Sekulow said, referring to the Gang of 14 compromise by which member senators may vote along party lines to filibuster a judicial nominee.

The Gang of 14, or "Mod Squad," is the group of seven Democratic and seven Republican moderate senators formed last spring to broker a deal to avoid the "nuclear option" that would ban the use of judicial filibusters.

An aide to Sen. Lincoln Chafee (search), a member of the Gang of 14, indicated the pro-choice Rhode Island Republican would approach Alito's nomination cautiously.

"Since we are replacing a swing vote, Chafee is going to look at this in a different way than when we replaced [late Chief Justice William] Rehnquist," spokesman Stephen Hourahan said. "The senator will have to take a long look at where [Alito] comes down. That’s where the Gang of 14 will play a pivotal role."

But Chafee's Gang of 14 colleague, Sen. Mike DeWine (search), said that he and others would be willing to break from the pack and go for the nuclear option if a filibuster were threatened by Democrats.

"I just have not seen anything so far that would make me believe this is even close to those 'extraordinary circumstances' that our group envisioned when we talked about the justification for a filibuster," said the Ohio Republican, who is up for re-election in 2006. "If it does, people like Lindsay Graham (search) and I, who are part of that group, will be willing to vote to change the rules of the Senate so we do not have a filibuster."'

Aides said the gang would meet Thursday morning in Arizona Republican Sen. John McCain's office.

While little doubt exists that Alito is to the right of O'Connor, a key swing vote on abortion, affirmative action and the establishment clause, it may be hard for opponents to cast the debate over Alito as one of moderation and restraint versus religious ideology and extremism.

"It was the intellectual-movement conservatives that killed Miers' nomination," a Republican aide said of charges that Bush's pick was a triumph for the Christian right.

"George Will and those conservative intellectuals have been waiting for this moment," the aide added, speaking on condition of anonymity.

The conservative rebellion against Bush after Miers was nominated exposed fissures among the president and the party, but Alito's nomination seemed quickly to have brought establishment Republicans back together. And any gains Democrats made from the fractiousness no longer appeared meaningful or lasting.

"That's over with," Sekulow said of the Republican rift. "As soon as the president announced [Alito's nomination], you saw a unified base and uniform praise coming from all sectors within the Republican Party."

Still, Republicans may run into some problems during the confirmation process.

"For the Republicans to say it's not about ideology is going to sound hollow," said legal scholar Michael Gerhardt of the GOP's cry that it would be inappropriate to consider Alito's ideology and personal views.

"It sure sounded like ideology when it was Miers. Some Republican senators cannot say with a straight face that this is not about ideology. They opposed Miers because she seemed squishy on ideological terms," added Gerhardt, who teaches at UNC-Chapel Hill School of Law.

But Democrats remain outnumbered in Congress, and may have to accept that Alito's confirmation is one of the spoils of Bush's two election victories.

"Bush won and got re-elected, and the Senate got more Republicans. So this is a circumstance in which the Republican majority in the Senate and this president are going to try to cash in on what they set out to do," Gerhardt said.

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