Bench brawl

Grover Norquist: Alito is a "Bo Derek 10." Ralph Neas: "Radical" nominee could "turn back the clock decades." Court watchers react to Alito.

Published October 31, 2005 7:24PM (EST)

John R. Kroger, former federal prosecutor; associate professor, Lewis and Clark Law School

President Bush's nomination of Sam Alito to the Supreme Court is a fascinating move, politically. Right now, the president is really struggling. His polling numbers are abysmal, the war in Iraq promises only more political pain, he has lost some traction with his right-wing evangelical allies, and the Libby indictment has tarnished his team's reputation for honesty. The president needs to start his second term over from scratch, but he has no real opportunity to accomplish this until early in 2006, with the State of the Union Address. Thus, the question for him and his advisors is: What do we want the country to be debating for the next two months? Their answer: Go back to the Ronald Reagan game plan, and fight about conservative legal values.

Judge Alito is clearly qualified, professionally, to sit on the Supreme Court. He has a strong background as a prosecutor and government attorney, long experience on the federal bench, and the kind of elite academic credentials (Princeton, Yale) that Harriet Miers lacked -- and that elitist conservative commentators like George Will appear to value highly. As a result, the only real reason for senators to oppose his nomination is ideology. Alito is an extremely conservative judge, certain to provoke strong opposition from liberal voices in the Senate. Thus, his nomination gives Bush exactly what he needs politically: a knock-down fight with liberals, whom he has been beating up successfully his entire career. With Miers, Bush struggled to articulate his reasoning. Here, he has his decades-old script memorized, down to the applause lines. Bush, in short, will be back in his comfort zone, attacking "left-wing obstructionists."

Why Alito? I think Bush's choice was dictated by politics. Alito is conservative enough to win support from the far right, and to guarantee opposition from the left. At the same time, I think the White House realized that his record -- which Alito appears to have carefully guarded over the years -- will probably be less offensive to Democratic and Republican moderates alike than many of the alternatives -- lightning rods like [J. Michael Luttig] Luttig or [Priscilla] Owen or [Edith Brown] Clement. For this reason, the nomination is more likely to end in a Bush victory than that of a potentially even more controversial nominee. As for his gender, I think the White House views it as a positive. What will rally his conservative troops more than a fight with Barbara Boxer over gender equity? All things considered, Alito is a pretty savvy choice.

Erwin Chemerinsky, expert on constitutional law; professor of law and political science, Duke University

Samuel Alito is one of the most conservative federal judges in the United States and almost certainly would be a vote on the Supreme Court to undermine basic constitutional rights which have been protected for decades. In selecting Alito, President Bush has chosen a nominee to please the right-wing critics of Harriet Miers and to fulfill his campaign promise to select a justice very much like Antonin Scalia or Clarence Thomas. Senators of both parties must make clear that Alito is far out of the judicial mainstream and thus is unacceptable for a seat on the nation's highest court.

The importance of this seat on the Supreme Court for the future of constitutional law cannot be overstated. Sandra Day O'Connor was the fifth vote on the Court to protect abortion rights, to allow remedies for racial injustice, to limit government support for religion, and to permit the government to regulate campaign finance to prevent corruption. In each of these areas, Alito is a virtually certain vote to change the law. As a Court of Appeals judge, Alito has a consistently conservative record on issues such as abortion, states' rights, separation of church and state, and employment discrimination laws.

President Bush easily could have chosen a more moderate Republican, in the mold of Sandra Day O'Connor, and who would have easily received confirmation by the Senate. But instead, Bush deliberately chose to politicize the process by selecting an individual who he knew would draw intense opposition from Democrats and hopefully moderate Republicans as well. The Senate must deny Alito confirmation and insist that President Bush select a more moderate individual for this key seat on the Supreme Court.

Samuel B. Casey, executive director, Christian Legal Society

In terms of his judicial experience, Judge Alito is probably the most qualified jurist that has been nominated to this bench in 70 years. He has personally heard cases and therefore had to rule in almost every aspect of American constitutional law, as well as many statutory schemes the federal court has been called to interpret. By virtue of how long he has been doing it, Judge Alito has been exposed to statutory law as well as constitutional law. While a potential Bush nominee like Priscilla Owen had the full support of Christian Legal Services as well, she was a state court judge, and thus interpreted federal law from a state appellate perspective, and she did this for just a couple months. She would be a fine candidate, but in terms of experience, Justice Alito is the most qualified. He's a great nominee; a very fair, amiable person who asks great questions of both sides, is very well prepared and writes very, very well. Most Americans should love this guy.

Zachary Carter, former U.S. attorney; chairman of Mayor Michael Bloomberg's Committee on Judicial Selection

The challenge that this poses for the Senate Judiciary Committee is to determine not just what Alito's ideological leaning is, but whether or not he could be considered a conservative activist judge. Conservatives have been largely successful in defining the term activist judge to the point where it has become synonymous with liberal or left-leaning judges. But it is just as possible for a conservative to be an activist judge.

I have not studied Alito's record closely, but he has been described as a person who is reflexively conservative in his rulings. He has been nicknamed "Scalito," in reference to Judge Antonin Scalia, and frankly, in my view that is shorthand for a jurist who many consider to be an activist judge -- who reaches on occasion beyond established precedent to impose his core conservative beliefs. Regarding important issues like abortion, the more activist a judge is, the more likely it will be that he will reach for an opportunity to extend the law in a way that's consistent with his own philosophy.

Ironically, Sandra Day O'Connor, the judge whom Alito would replace, was the ideal non-activist conservative judge. In many respects O'Connor stands as a model of the kind of judge that conservatives should be supporting, because she was reliably conservative -- but she would not impose her own conservative values in the face of clear established precedent of the Supreme Court, or the clear wording of federal statute.

As for whether Alito will be confirmed, frankly, that is an issue of democratic will and conviction and spine. Democrats had very little to do with the withdrawal of the Miers nomination. She pretty much self-destructed. This will require a certain amount of scrutiny and courage by Democrats and it remains to be seen whether they will ask the kinds of searching questions to determine whether Alito is a conservative judicial activist, or rather a judge committed to the rule of law who happens to be conservative.

Richard D. Friedman, expert on the history of the Supreme Court; professor of law, University of Michigan

I think this is a good appointment, a good nomination from the president's standpoint, though it's risky. It's obviously a different approach from the Miers nomination, which was a stealth nomination -- a candidate the president thinks he knows, and about whom relatively little information is available.

In light of the right wing's hostility to the nomination of Harriet Miers, Bush is opening himself up to a fight that he probably concluded he had to take. I don't think at this point he relishes a fight, though he's not the type of president who minds one, either. The question is whether Democrats and some moderate conservatives will have the stomach to force a debate on ideological grounds.

I don't think there's a lot about this nominee that the president knows that the Senate doesn't. Much more than Miers, his record is an open book and there are going to be lots of challenges on ideological grounds. The president hoped in the case of Miers that this kind of debate could be muffled. It failed in part because of ideological considerations from both sides, and in part because she didn't have the necessary stature.

But in this case there's no doubt about Alito's stature. This is the type of résumé one hopes to see for a Supreme Court nominee. He's had senior positions in the solicitor general's office and has been an appellate judge for 15 years. He's a very smart guy, familiar with constitutional law, who takes a very fair, judicial approach.

Abortion, of course, is a big issue with this nomination. The irony is that if what's left of Roe v. Wade were overruled, it would be much less of a big deal than if the affirmative action ruling in Grutter v. Bollinger [which upheld the affirmative-action admissions policy of the University of Michigan Law School] were overturned. The Grutter v. Bollinger decision was a 5-4 decision with Sandra Day O'Connor in the majority. If there's a similar case and both Roberts and Alito go with the former dissenters, you've got five votes the other way.

If Roe were overruled the matter would be left to the states. The states could then ban abortion -- but I think most of them wouldn't. And in some of those states where the state legislatures would choose to severely limit abortion rights by law, effective access to abortion is already limited. And it would be the greatest mobilizing force for the pro-choice movement ever, while it would be a very divisive event for conservatives, since there are many pro-choice Republicans. And that in itself might have a very significant impact in legislative elections in 2006. Legislative elections all throughout the country would be run on abortion, and that plays to the advantage of the Democrats.

Grover Norquist, Republican strategist; president of Americans for Tax Reform

Karl Rove cleverly offered up Harriet Miers to depress the base, so that when we got Alito, everyone was four feet off the ground ecstatic, as opposed to saying, "thats what we reasonably expected." They didnt plan it this way, of course. But thats the effect it has. Everybody is so pleased, everybody is so happy. Alito is one of seven or eight Bo Derek 10s that were out there, for the purposes of judicial philosophy.

All anyone on the right is asking for is someone who will interpret the law fairly. We dont need them to move the ball down the court. We will go win the House and Senate seats to do what we need to do. What we need are judges who wont steal it from us. We will pass legislation and we need a judge who can read it and not make stuff up.

Getting the Democrats to come back into the fight is exactly the kind of thing that pushes up conservative numbers and pushes down liberal numbers. This is known territory. We win this fight. And the mushy moderates in the middle like a guy whos really smart. They want a competent guy, they get a competent guy.

The right is united, because all parts of the right want the same thing. Were perfectly happy to have someone who simply reads the constitution and the law, preferably laws written in the United States, not this European stuff. And the left is also united. And since we have slightly more people than them, we win.

As for why Bush didnt pick a woman with similar credentials to Alito, I dont know. Ive heard speculation. Ive heard that Alito is particularly well-liked by the head of the judiciary committee, Sen. Arlen Specter. When they first nominated Antonin Scalia, the Italians and New Yorkers really liked that, and that brought us some odd support.

Ralph Neas, president of People for the American Way

I think this is probably the most important and controversial Supreme Court nominee since Robert Bork in '87 and Clarence Thomas in '91. We're asking senators not to take a position until the hearings. With Roberts we did not take a position until five weeks after the nomination, because we had to go through thousands of pages of documents.

This time we were able to frame the debate and define the issues immediately. We need to make sure people understand that this is not a mainstream conservative like Sandra Day O'Connor but a right-wing judicial activist in the mold of Antonin Scalia and Thomas and Bork. These people just have a radically different interpretation of the Constitution.

I actually think that because Alito is so extreme, there is a good chance we can get to 51 votes against the nomination, because there are a lot of moderate and even conservative Republicans who don't want to turn back the clock on privacy issues, civil rights issues, environmental protection and a woman's reproductive freedom and reproductive health. But we would certainly recommend that all parliamentary procedures, including the filibuster, should be available for use against the nomination. This is only the second time in 70 years that the court has been evenly divided on many major constitutional issues.

As for why the president didn't nominate a woman with similarly conservative views, that's a good question. I don't know the answer. We certainly hoped that Latinos and women would be considered. But it's a real mystery, considering what the president and so many others had said about diversity, how we ended up with John Roberts, and now Samuel Alito, because there are a lot of mainstream convervatives out there who are female and people of color, as well as right-wing conservatives. So I don't know what their decision-making process was.

But this is not a litmus test over one issue or two issues or three. What we have now is an epic struggle, a titanic clash, between two competing and radically different judicial philosophies. Scalia, Thomas, Alito and Bork believe the Constitution has been wrongly interpreted for 60 or 70 years. They want to restore the Constitution to its pre-New Deal incarnation. If Alito replaces O'Connor, a maintream conservative, he could literally be a walking constitutional amendment, turning back the clock on a wide array of issues going back decades.

By Compiled by Aaron Kinney

By Juliana Bunim

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