Is Judge Samuel Alito stumbling on the road to confirmation for the Supreme Court, instead of following Chief Justice John Roberts’ smooth path to Senate approval? Not really, but pro-and-con Alito campaigns are hitting full stride in the holiday season prior to Senate hearings beginning Jan. 9. The process becomes a debate over who this judicial nominee really is.
The impression that Alito’s nomination may be in trouble is being created by left-wing interest groups and their Senate allies, who project what the judge’s defenders call the "jack-booted thug theme." Alito’s past decisions are used to depict him supporting strip searches of little girls and legalization of machine guns. In a pre-emptive strike against more such attacks, his conservative backers this week have dubbed this "law enforcement week," to paint Alito as the scourge of crime.
Little of this has much to do with how Alito actually would conduct himself as a justice, but Supreme Court confirmations have taken on the characteristics of American elections. In truth, the Alito campaign is one part of a relentless, sustained struggle for control of the Supreme Court extending far into the future. Nan Aron of the Alliance for Justice in 2004 declared she will do "whatever it takes" to keep conservatives off the Supreme Court. This year, when Aron was asked what she would do to stop Alito, she replied, "You name it, we’ll do it."
The notion that Sam Alito has been scrutinized by liberals and found wanting is an illusion. Anybody that President Bush would select to the high court would be opposed by Aron and her collaborators, Ralph Neas of People for the American Way and Wade Henderson of the Leadership Conference on Civil Rights. Even Attorney General Alberto Gonzales, the possible Bush nominee least acceptable to conservatives, would be opposed by these three horsemen of the Left.
Roberts was just as unacceptable to them as Alito is, but the activists were unable to find critical mass for the future chief justice because his paper trail was so skimpy. In contrast, in two pieces of paper prepared 20 years ago by Alito (one of them a job application), he described himself as anti-abortion. That was enough to mobilize the senators who most dependably follow the special interest groups: Charles Schumer of New York, Edward M. Kennedy of Massachusetts and Barbara Boxer of California.
But abortion is not an issue that will broaden the anti-Alito bloc beyond the 22 hard-core senators who voted against Roberts. Accordingly, Alito’s 15 years as an appellate judge have been mined to yield controversial decisions that could not be found in Roberts’ two years on the District of Columbia circuit court, which dealt largely with administrative cases. Alito’s dissents on criminal-search and gun-control cases are cited to turn him into a "jack-booted thug." This characterization might seem more credible for Alito, the son of an Italian immigrant, than for Roberts, whose father was a corporate executive.
Alito’s strategists reply with "law enforcement week," emphasizing his endorsement by the Fraternal Order of Police (FOP). To assail Alito’s decisions, said FOP President Chuck Canterbury, is "like attacking a police officer for doing his job and making arrests."
An Internet ad distributed by the conservative Judicial Confirmation Network to over 10 million users this week will fire back on critics of Alito’s dissent validating the search of the young daughter of a suspected drug dealer. It contended that "left-wing extremists opposing" Alito "may have found new allies — drug dealers who hide drugs on children." The ad is also sent on the Internet to Grassfire.org, a conservative activist group with 1.5 million members that produced 700,000 signatures in support of an amendment opposing homosexual marriages.
The intent of this effort is to keep Alito’s opposition in the Senate below the 41 votes needed to defeat a cloture motion stopping a filibuster. But even if his foes fall just short of that level, the hope on the left is that such a showing will dissuade Bush from naming another Roberts or Alito to the next vacancy on the court. The Senate’s confirmation process has been degraded into an endless political campaign.