Alito Vs. Roberts

Bush nominated Samuel Alito to the U.S. Supreme Court today. No surprise here, in the wake of the Harriet Miers withdrawal Bush was pushed to nominate a well known solid pro-life conservative to the bench. Alito was narrowly passed on by Bush before initially nominating John Roberts to replace Sandra Day O’Connor as an Associate Justice. However, there is every indication Alito is just as qualified and conservative as Roberts. The liberals are going to have an extremely difficult case to make in opposition to his nomination. Painting Alito as an extremist similar to Scalia is the strongest argument that can be made for rejecting the Alito nomination. However, unlike Scalia, Alito has a reputation of examining the law on a case by case basis as opposed to having an over-arching position from which to base an opinion. Those who disagree with his apparent ideology will have to reconcile that opposition with the previous support by Senate liberals when first confirmed as an Appellate Judge in 1990, including Senator Ted Kennedy who now has taken the opposite position. However, one could argue that Alito’s judicial philosophy is now better defined and concrete than prior to 1990 when he had been a prosecutor and a lawyer.

Nonetheless, ideological opposition is not enough to justify a disqualification to the U.S. Supreme Court. Unless the liberals are successful in portraying Alito as someone who has an agenda to “make” law from the bench or has some extreme viewpoints, Alito’s confirmation is assured with a solid majority in the Senate likely to support the nominee. I also support Alito, primarily because it is unrealistic to expect a more moderate nominee if Alito’s nomination were to be rejected by the Senate. Also, I do agree with a moderate conservative argument on abortion that argues it should be left up to the states. By denationalizing abortion, a critical wedge issue commonly used by Republicans in national elections to portray themselves as the party of morality would be removed. Instead abortion would become a local and state issue that should have little effect on a national level. Of course assuming that a conservative majority in the U.S. Supreme Court guarantees a virtual overturn of Roe v. Wade would be foolish. One cannot underestimate the importance of established precedence in Supreme Court cases, making it unlikely an abortion case challenging the current law would be successful. The conservative activists’ demand for a qualified nominee who is both a strict constructionist and who exercises judicial restraint, which means they must respect precedent, is ironic. In this respect, Alito is very similar to Roberts, who is portrayed as somewhat of a moderate by liberals who supported his nomination, because he had a reputation of respecting established judicial precedence, which includes Roe v. Wade.

Now some liberals in Congress are wining about the lack of consultation Bush had with them on this choice, as he did with Roberts. After staying out of the Miers fight, preferring to leave the conservatives to create division within their own ranks, there was little incentive for the president to re-consult with Democrats over someone who probably came up in previous discussions regarding the first Supreme Court nomination. Furthermore, there is no reason to believe Alito would have been recommended or supported by Democrats in the Senate, a fact that Bush is well aware of. Besides, Democrats had the opportunity to voice more support for Miers in the face of much conservative opposition, but instead opted to stand by for the withdrawal of a potentially moderate nominee. They failed to take advantage of the legitimate charges of cronyism and lack of qualifications, but also failed to realize a replacement nomination would likely appease the very same right-wing conservatives who were concerned about Miers ability to stand up to pro-choice judicial “activism.” If Miers had been more publicly vocal over the years on a pro-life agenda, charges of cronyism and the her lack of qualifications would have been ignored by most conservatives, and instead used by both strong moderate and liberal opposition, perhaps causing a Senate rejection, and subsequently pressuring the president to nominate a true moderate. In essence, the Miers nomination was an ingenious ploy to temporarily temper liberal opposition and to eventually ensure a solid conservative replacement for the moderate Sandra Day O’Connor.