Battle for the court begins

With conservative bona fides, Samuel Alito faces stiff Senate opposition to his nomination.

By , Staff writers of The Christian Science Monitor , Staff writers of The Christian Science Monitor

For activists spoiling for war over the Supreme Court, President Bush has just delivered. The nomination Monday of Samuel Alito, a conservative federal appeals court judge with an Ivy League pedigree and a long paper trail, instantly fired up the president's supporters and inflamed liberals.

By selecting a solid conservative to replace retiring Justice Sandra Day O'Connor - a moderate swing vote on divisive social issues like abortion and affirmative action - Mr. Bush has signaled his intent to shift the high court clearly to the right.

At last, his supporters say, Bush has fulfilled his campaign promise to nominate justices in the mold of Antonin Scalia and Clarence Thomas. Even the new chief justice, John Roberts, remains an enigma to some conservatives, who continue to express concern that he will not be a completely reliable ally of the court's conservatives.

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Of course, no new justice's vote is a sure thing, but in those crucial first hours post-nomination, Bush's base hailed Mr. Alito, citing the clearly conservative judicial philosophy evident during his 15 years on the Third Circuit Court of Appeals.

The reaction from liberal interest groups was equally sharp in opposition. A big question from the Senate, which is constitutionally required to pass judgment on federal court nominations, is whether Alito will trigger a battle over the use of the filibuster if Democrats decide to use this tactic to try to thwart confirmation.

As a political move, analysts say, the Alito pick has helped Bush. His second term has been marred by scandal, missteps on federal responses to hurricanes, high gas prices, and declining public support for the Iraq war.

His earlier Supreme Court nomination of Harriet Miers produced a schism among Republicans, which began to heal with her withdrawal last week, on the eve of the indictment of former White House aide I. Lewis Libby.

Now, Bush's base has moved from merely reunited to enthusiastic. He has gone on the offensive and created a rallying point by throwing down a gauntlet to liberal partisans spoiling for a fight over the Supreme Court.

For Mr. Bush, the Alito nomination represents "a step toward a comeback," says Stuart Rothenberg, editor of a nonpartisan political newsletter. "He'll have to do a lot right for a long time to have a real comeback. But Republicans are still better off if they're arguing over conservative versus liberal, judicial activism versus strict construction, than if they're talking about the government's response to FEMA, administration ethics issues, [and] high gas prices."

Alito has been mentioned as a possible Supreme Court candidate since the beginning of Bush's tenure, when it was widely assumed the president would have at least one vacancy to fill.

As a white male with a strong conservative record, Alito seemed perhaps a long shot. But in just a few months, the political calculus has changed. Justice Roberts's limited paper trail gave the left little to grab onto and the right feeling only cautiously optimistic. The Miers episode left the right dumbfounded. Now, gender and other diversity factors, such as life experience, have moved to the back burner.

"This shows that President Bush prizes legal philosophy above all else," says Michael Gerhardt, a law professor at the University of North Carolina School of Law.

"The far right has been itching for a fight for some time," Professor Gerhardt adds. "They want to erase what happened to Bork, and they want to have somebody whose nomination will provoke a debate about all these big issues, and if they win, then they feel that vindicates their philosophy and its opens doors to other like nominees."

He is referring to Judge Robert Bork, an outspoken conservative with a long paper trail, whose Supreme Court nomination in 1987 was successfully derailed by liberals who warned he was "out of the mainstream." Since then - and until now - Republican presidents have moved cautiously on high court picks. Under the current President Bush, that continuing caution had frustrated conservatives who felt he was not using the advantage of a majority in the Senate - with 55 Republicans, 44 Democrats, and an independent who usually votes Democratic.

On Capitol Hill, the Alito nomination sets up what many senators are already describing as Armageddon, including the option of a change in the rules of the Senate to outlaw filibusters of judicial nominations - dubbed the "nuclear option."

"This is a needlessly provocative nomination. 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," said Sen. Patrick Leahy, lead Democrat on the Senate Judiciary Committee, in a statement.

One factor potentially working in Alito's favor is his low-key, friendly personality. Gerhardt says that while Alito is a conservative ideologue in the mold of Justice Scalia - thus the nickname "Scalito" - "everyone acknowledges that he is smart and tries to decide each case as it comes before him. Alito, he adds, "is Justice Scalia, but maybe with a smile and a little more polite and less temperamental."

Others dispute the "Scalito" nickname. "It is a complete joke," says Michael Carvin, a Washington lawyer specializing in appellate and Supreme Court cases. "Left-wing interest groups came up with that name in a feeble effort to tar Alito as far right."

Howard Bashman, an appellate lawyer in Philadelphia and founder of the popular blog How Appealing, describes Alito as charming and even shy as an individual. But he can be tough. "He can give any lawyer a hard time by asking difficult questions, but not by being difficult or confrontational," Mr. Bashman says. While Alito's rulings tend to be conservative in criminal law cases, his decisions in civil cases are difficult to predict and are not necessarily those of a doctrinaire conservative, he adds.

Republican senators, many of whom did not back the nomination of Harriet Miers, spoke out quickly and firmly in support of Alito. "He's a superb nominee," says Sen. Jeff Sessions (R) of Alabama, a member of the Senate Judiciary Committee. "I can't imagine senators will find any circumstances in his background that would justify denying him a vote."

A key factor will be the position of the so-called Gang of 14, seven Democrats and seven Republicans who agreed last May to block filibusters of judicial nominations except in the case of "extraordinary circumstances." The seven Republicans also agreed to not support the nuclear option, unless the pact were broken. Members of this group have had ongoing talks on the status of their agreement since then. "I hope we can hold together," says Sen. Mary Landrieu (D) of Louisiana, a member of the Gang of 14.

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