President Bush will nominate Samuel Alito to the Supreme Court seat being vacated by Sandra Day O’Connor, the third nominee for this seat. The AP and Fox News reports that the New Jersey jurist and former prosecutor had topped George Bush’s list during his last round of deliberations, but had lost out to the now-withdrawn Harriet Miers when Bush decided to try choosing someone outside of the “judicial monastery”:
Bush believes that Alito has not only the right experience and conservative ideology for the job, but he also has a temperament suited to building consensus on the court. A former prosecutor, Alito has experience off the bench that factored into Bush’s thinking, the officials said.
While Alito is expected to win praise from Bush’s allies on the right, Democrats have served notice that his nomination would spark a partisan brawl. Senate Minority Leader Harry Reid, D-Nevada, said Sunday that Alito’s nomination would “create a lot of problems.”
Unlike Miers, who has never been a judge, Alito, a 55-year-old jurist from New Jersey, has been a strong conservative voice on the 3rd U.S. Circuit Court of Appeals since former President George H.W. Bush seated him there in 1990.
Of course, the Democrats blew their one opportunity to get a moderate on the bench during the Bush administration by waiting until Miers withdrew before defending her. Prior to that, Charles Schumer and Pat Leahy took great pains to call her questionnaire response “insulting” and echoing conservative complaints that her resume seemed too lightweight for a nomination to the Supreme Court. Had they pledged to support her, Bush likely would have allowed her to coast through the hearings to a floor vote despite the dissatisfaction on the right.
Now Bush has nominated a jurist with a solid track record and a reputation for a scholarly and consistent approach to Constitutional issues. However, unlike some of the other people on the list, such as Janice Rogers Brown, Alito does not produce a knee-jerk reaction on the Left. The two organizations that have pushed the disastrous obstructionist strategy for the Democrats, People for the American Way and Alliance for Justice, don’t even have a ready profile for opposition to Alito, despite his long residence on conservative short lists.
On the other hand, Alito doesn’t always produce rulings that please the Right, which sometimes wishes for activism when it should be pleased with originalism. USA Today shows Alito’s libertarian streak in a July profile highlighted by Michelle Malkin:
Some observers say that Alito cannot be easily pigeon-holed. In Saxe v. State College Area School District, Alito, writing for the panel, argued that the school does not have the right to punish students for vulgar language or harassment when it doesn’t disrupt the school day. “Sam struck that down as a violation of free speech,” Kmiec says. “That’s not a conservative outcome.”
Alito, at 55, has the possibility of providing 20-30 years of jurisprudence on the Supreme Court, meaning that he and John Roberts have a real opportunity to turn the court back from its decades-long flirtation with supplanting the Legislature and turning itself into a strange American version of the Iranian Guardian Council. In this nomination, Bush may have hit the home run we wanted with the first nomination. Democrats may well try obstructionism, but they stand to lose the filibuster if they try — and if John Paul Stevens steps down or dies during the next two years, the path will open up for Janice Rogers Brown to take his place.