Entirely Different Feeling

Yesterday, while I was dealing with computer and HVAC issues, the President was busy nominating Third Circuit Judge Samuel Alito to the Supreme Court. While this nomination obviously is not going to sail through easily, the whole nomination seems to be very different than the nomination of Harriet Miers -- there is a lot of debate, a lot of controversy, and a lot of praise for the nominee, who seems to be exactly the right counterpoint to all the criticisms of Ms. Miers.

Conservatives are very excited, as Judge Alito has been a reliably “right” ruling-judge for his fifteen-year tenure on the Third Circuit. There can be no doubt he is well-versed in Constitutional law and there is an extensive track record to evaluate. And, he graduated from Yale Law School, so that's an impeccable academic credential to satisfy the law snobs. Still, there is substantial reason to believe that, once confirmed, he will be substantially different from the darlings of the Republican party on the High Court.

First of all, the Washington Post reports that Samuel Alito has assured Senator Specter that “…he would be reluctant to overturn any Supreme Court ruling that had been reaffirmed many times over many years, as Roe [v. Wade] has been. … Specter said [:] ‘He used the term “sliding scale,” and said that when a case has been reaffirmed many times, it has extra -- I think he said “weight” -- as a precedent.’” If true, the right will wind up disappointed as they perceive this nomination to be their best chance in thirty years to go after the golden goal of overturning Roe. I hope this does turn out to be true, but of course we can't really know until the case is handed down some tense June afternoon in the future. I'll be very interested in seeing what Sam Brownback has to say about Judge Alito, in light of Senator Brownback's unfair and arrogant attitude towards the Harriet Miers nomination.

Additionally, the Legal Times reports that one of Alito’s former law clerks, a self-described liberal Democrat, says “He’s not an originalist; that's the most important thing. I don't see him saying, ‘As the Framers said in 1789,’ the way Scalia writes his opinions.” A former colleague on the Third Circuit, Timothy K. Lewis, recalls frequently disagreeing with Judge Alito, but describes it as “always a deeply respectful disagreement.” Lewis assures Law.com that “Sam Alito is intellectually honest” and “principled.” And relates former Third Circuit Chief Judge (and no small hero to liberal court-watchers) A. Leon Higginbotham describing Judge Alito as “full of integrity,” “careful” and “thoughtful.”

These, however, are tea leaves. The nomination can be expected to polarize opinions and fuel fund-raisers on both sides of the national aisle for months, and there probably won't be a vote on Alito until January or February. Such a vote would come after most of the Supreme Court's oral arguments for the year had been completed. I wonder, wouldn't it be worth it at that point for Justice O'Connor to complete the 2005-2006 term?

An intellectually honest, careful, and thoughtful Justice is about all we can ask for; whoever Bush nominates is going to be conservative (or at least appear so during the confirmation process). There's no doubt Alito is keenly intelligent, well-experienced, and a sharp choice (this time) from the White House. He probably deserves the spot on the High Court more than a great many of his colleagues. But make no mistake, Loyal Readers. There will be a fight, and it will split largely down party lines. The fight will be (as the Miers fight would have been) ultimately about abortion. There may well be a filibuster that has to be broken up by the “Gang of 14,” and we'll see whether or not that deal holds any water.