Alito nomination signals all-out ideological fight

Published: Tuesday, November 1, 2005 at 6:01 a.m.
Last Modified: Tuesday, November 1, 2005 at 12:44 a.m.
WASHINGTON - The selection of Judge Samuel A. Alito Jr. for the Supreme Court has given President Bush's conservative backers and liberal opponents just the battle they wanted. And it has given Bush - battered but not broken by a range of other troubles - a fight that he and the White House believe they can hardly help but win, beginning by changing the subject in Washington.
Having gambled that he could avoid all-out warfare with his nomination of Harriet E. Miers, whom some Democrats had urged him to consider and then let twist in the wind as conservatives savaged her as underqualified and ideologically suspect, Bush has now reverted to form with a man whose rock-solid academic credentials, long judicial experience and clear-cut conservative views had put him on the president's short list (and some Democrats' blacklist) all along.
Within hours of the president's early morning announcement, liberal groups that had waited a month or more to take a position on Bush's nomination of Judge John G. Roberts Jr. over the summer issued broadsides formally opposing Alito as a threat to abortion rights, civil liberties and gun control, while conservative groups that had withheld support from Miers weighed in with glowing endorsements.
Alito's 15-year paper trail of more than 200 opinions as a federal appellate judge is much longer (and potentially more controversial) than that compiled by Roberts during his two years on the appellate bench, and Democrats responded to his selection to fill Justice Sandra Day O'Connor's pivotal seat on a divided court with far sharper initial fire.
''Every American should be deeply concerned that the far right wing which prevented Harriet Miers from even receiving a Senate hearing is celebrating Judge Alito's nomination and urging the Senate to rubber-stamp the swing vote on our rights and liberties,'' said Sen. John Kerry, D-Mass. ''Has the right wing now forced a weakened president to nominate a divisive justice in the mold of Antonin Scalia?''
Conservatives' willingness to scuttle Miers' nomination without so much as a hearing cast doubt on their longstanding insistence that all judicial nominees should be entitled to an up-or-down vote on the Senate floor without the threat of a filibuster, and some Democratic nose counters suggested that a filibuster to block Alito was very much on the table. A bipartisan agreement by 14 centrist senators to avoid filibusters in all but extraordinary cases, still fresh when Roberts was named, may well now carry less force.
But it remains to be seen just how big the fight will be.
Just as the left ultimately found it difficult to caricature Roberts, who won 22 Democratic votes on the Senate floor, Alito's supporters inside and outside the White House say his respectful low-key style, son-of-an-immigrant personal story and undisputed qualifications will almost certainly make him an acceptable figure to some of the same red-state Democrats who backed Roberts.
Moreover, the White House and its allies are now squarely united, ready to paint the Democrats as obstructionist and out of step if they try to derail the nomination by extraordinary means. Interest groups on both sides are prepared to spend millions of dollars to make their case.
''We will look to keep Democrats on their heels as they go out to launch some of the more absurd attacks,'' said one senior White House aide who spoke on condition of anonymity. ''There's no person that this president would pick who could please some of the extreme elements of their party.''
Miers' forced withdrawal and the indictment of I. Lewis Libby, Vice President Dick Cheney's former chief of staff, on perjury charges have left Bush politically weaker than he was when he chose Miers a month ago, and arguably much weaker than when he nominated Roberts in July, as rising gas prices and the war in Iraq were already taking a toll on his poll ratings. The latest USA Today/CNN/Gallup Poll, taken over the weekend, found that 55 percent of Americans now see Bush's presidency as a failure.
But it is not clear how widespread the appetite for all-out warfare will be among the public at large, or even among Senate Democrats, at a time of so many other pressing problems. On Monday, at least some Senate Democrats called for a cooling of oratory.
''I would hope that people on both sides would hold their fire, allow the Judiciary Committee to do its work and not take a position until that work is completed,'' said Sen. Dianne Feinstein, D-Calif., the sole woman on the Judiciary Committee. Feinstein voted against Roberts.
For their part, conservatives wasted no time in pointing out that Alito was confirmed to his current judgeship 15 years ago by unanimous consent of the Senate. The Republican National Committee put out a news release noting that at that time, Sen. Edward M. Kennedy, D-Mass., praised Alito for his ''very commendable career'' as a prosecutor and government lawyer in the Reagan administration and yet on Monday denounced Bush as now selecting someone who his right-wing supporters ''think has views as extreme as their own.''
Democrats say the difference between then and now is 15 years of Alito's decisions, and a climate in which everything about judicial nominations has grown far more politicized and polarized.
But one top Republican helping to organize Alito's confirmation hearings suggested that the predicted fight might yet fizzle away.
''I think there'll be a lot of intensity,'' said the official, who spoke on the condition of anonymity because of the White House's unwillingness to be seen as acknowledging that anything other than substantive concerns drive its actions. ''But I think there's a real risk here of Democrats' overplaying their hand. We've done it in the past, and they've done it. It happens in politics. I think that at the end of the day, a lot of Democrats are going to realize that this is a healthy debate, but not a winning fight to the death.''
The White House and its allies are now squarely united, ready to paint the Democrats as obstructionist and out of step if they try to derail the nomination by extraordinary means.

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