Washington – President Bush nominated federal appellate court Judge Samuel Alito for the U.S. Supreme Court today, placating those conservative activists who undermined Harriet Miers but provoking a fight with liberals.
“He is scholarly, fair-minded and principled,” Bush said, naming Alito to replace retiring Justice Sandra Day O’Connor.
Alito, 55, has served for 15 years as an appeals court judge. Bush said his nominee “has more prior judicial experience than any Supreme Court nominee in more than 70 years.”
The son of an Italian immigrant, Alito graduated from Princeton University and Yale Law School. He served in the Justice Department during the Reagan administration, and as a federal prosecutor before winning the Senate’s unanimous approval to the federal bench in 1990.
Alito is best known for a 1991 dissent in a landmark Pennsylvania case in which he argued that a state can make women notify their husbands before getting an abortion. The Supreme Court rejected Alito’s reasoning, and instead used the case to reaffirm abortion rights.
Several progressive groups – People for the American Way, the Alliance for Justice, MoveOn.org, NARAL Pro-Choice America and others – immediately declared their opposition.
“Judge Alito would undermine basic reproductive rights,” said Karen Pearl, president of the Planned Parenthood Federation of America. “It is outrageous that President Bush would replace a moderate conservative like Justice O’Connor with a conservative hardliner.”
“Any nominee who so worries the radical left is worthy of serious consideration,” countered conservative activist James Dobson, founder of Colorado Springs-based Focus on the Family Action, who declared himself “extremely pleased.”
Among feminists and liberals, who fear that Alito will join Justice Antonin Scalia as a member of the court’s conservative bloc, the nominee’s heritage and judicial philosophy have earned him the nickname “Scalito.”
If confirmed by the Senate, Alito would be the court’s fifth member of the Roman Catholic faith. Alito’s mother Rose, 90, told the Associated Press: “Of course he’s against abortion.”
Republican Senate leaders pledged their support, but the chamber’s moderates took a wait-and-see attitude toward the nomination.
One key senator – Republican John McCain of Arizona – said he was “pleased” with the nomination and added that “Judge Alito’s record is one of a thoroughly experienced, capable and principled jurist.”
McCain is one of the bipartisan “gang of 14” senators who have vowed to uphold the Senate filibuster rule for judicial nominations, while promising to employ the tactic only under “extraordinary circumstances.”
Republicans hold 55 seats in the 100-member Senate. To defeat a nominee on an up-or-down vote, Alito’s foes would have to garner 51 votes. But under current rules, to indefinitely delay a vote by filibustering, they would need just 40 votes.
“I wouldn’t take it off the table right now,” said Senate Minority Leader Harry Reid of Nevada, when asked about a filibuster.
Like other Democrats, Reid criticized Bush for not consulting with senators, and for selecting a white male to the court: “We have here the good ol’ boys club.”
Bush introduced Alito at an 8 a.m. ceremony at the White House, where the bespectacled nominee promised to “interpret the Constitution and the laws faithfully and fairly, to protect the constitutional rights of all Americans, and to do these things with care and with restraint.”
Alito’s record as a government lawyer and federal judge will give his critics ample material with which to question him when the Senate Judiciary Committee holds hearing on the nomination.
In 1997, Alito dissented in a case that upheld the conviction of a gun dealer for selling machine guns. Citing a Supreme Court decision that limited congressional authority to regulate gun use as a form of interstate commerce, he argued that Congress’s power under the Constitution’s commerce clause “must have some limits.”
Liberal groups zeroed in on Alito’s dissenting opinion in Planned Parenthood v. Casey, a 1991 abortion case that the Supreme Court ultimately used to reaffirm Roe v. Wade, the 1973 ruling establishing the right of abortion.
The issue was whether the Pennsylvania legislature could restrict the ability of women to obtain abortions through regulations like a requirement that wives notify husbands before undergoing the procedure.
The 3rd Circuit court, with Alito dissenting, ruled that the spousal-notification provision was the kind of burdensome regulation forbidden by Roe. The Supreme Court then took the case, threw out the spousal-notification rule and other Pennsylvania restrictions, and sustained Roe.
But Alito won renown in conservative circles after his dissent in Casey was cited by the late Chief Justice William Rehnquist, who joined Scalia and two other justices in unsuccessfully arguing that Roe should be overturned.
Alito, however, never went as far as to openly challenge the reasoning in Roe. And in two subsequent New Jersey abortion cases he joined the court majority in decisions that upheld various abortion rights.
