Alito Nomination Sets Stage for Ideological Battle
Bush's Court Pick Is Appeals Judge With Record of Conservative Rulings

By Peter Baker
Washington Post Staff Writer
Tuesday, November 1, 2005

President Bush nominated U.S. Court of Appeals Judge Samuel A. Alito Jr. to the Supreme Court yesterday, rallying his estranged Republican base back to his side and triggering a torrent of liberal attacks that could foreshadow a bruising ideological showdown over the future of the judiciary.

In effect relaunching the nomination four days after Harriet Miers withdrew under fire, Bush selected a long-standing New Jersey judge with an extensive record of conservative rulings on abortion, federalism, discrimination and religion in public spaces. If confirmed to replace retiring Justice Sandra Day O'Connor, the swing vote in recent years, Alito seems likely to shift the court to the right.

Conservative leaders who helped force Miers to pull out Thursday rejoiced at the selection, seeing in Alito the philosophical equivalent of Justice Antonin Scalia. Liberal groups moved instantly onto a war footing and accused Bush of bowing to the most extreme elements of his party. The intensity of the response instantly put Alito at the center of what seems to be the political confirmation battle that both sides have been gearing up to fight for more than a decade.

"Judge Alito has gained the respect of his colleagues and attorneys for his brilliance and decency," Bush said in introducing his latest choice. "He's won admirers across the political spectrum. I'm confident that the United States Senate will be impressed by Judge Alito's distinguished record, his measured judicial temperament and his tremendous personal integrity."

Critics wasted no time disputing that. Senate Minority Leader Harry M. Reid (D-Nev.), Sen. Charles E. Schumer (D-N.Y.) and the liberal group People for the American Way rushed out statements blasting the nomination even before Bush announced it at 8 a.m. By the day's end, much of the organized left had joined the chorus, including the AFL-CIO, NARAL Pro-Choice America, the Alliance for Justice, and the Leadership Conference on Civil Rights.

"After insisting that Harriet Miers shouldn't even get a hearing because she couldn't prove she was extreme enough, the far right has now forced the president to choose a nominee that they think has views as extreme as their own," said Sen. Edward M. Kennedy (D-Mass.).

Reid, who had encouraged Bush to pick Miers, said the Senate would have to investigate whether Alito "is too radical for the American people" and complained of another white male nominee. "President Bush would leave the Supreme Court looking less like America and more like an old boys club," Reid said.

If confirmed as the nation's 110th justice, Alito would join a nine-member court that has one woman and one black justice. Alito would be the second Italian American, after Scalia, and its fifth Catholic, joining two Jews, a Protestant and an Episcopalian. Bush had considered appointing the first Hispanic justice but opted against the known candidates. And despite pleas from O'Connor and Laura Bush, he decided against putting forth a second woman after Miers failed.

In some ways, Alito, 55, appears to be everything Miers was not. She was a corporate lawyer who studied at Southern Methodist University and broke gender barriers in Texas; Alito earned degrees from Princeton and Yale universities and served in President Ronald Reagan's Justice Department and as U.S. attorney in New Jersey.

Miers was never a judge and generated a limited paper trail with ambiguous political moorings. Alito has served on the U.S. Court of Appeals for the 3rd Circuit with chambers in Newark since being nominated by President George H.W. Bush in 1990 and has addressed a range of society's most volatile subjects.

The same president who touted Miers a month ago as a nominee with real-world experience far removed from "the judicial monastery" yesterday emphasized Alito's lengthy history on the bench, noting that he "has more prior judicial experience than any Supreme Court nominee in more than 70 years." Bush even chose to introduce Alito in the main hall of the White House, rather than in the Oval Office, where he announced Miers's nomination.

Presidential aides acknowledged the course change. "We tend to learn our lessons," said one senior official, who spoke on the condition of anonymity so he could be more candid. White House press secretary Scott McClellan said that "the culture of today's confirmation process makes it very difficult for someone who comes from outside the court" to be appointed.

The Trenton, N.J.-born son of an Italian immigrant, Alito has drawn comparisons to Scalia, to the point that some have dubbed him "Scalito" -- as if he were the next generation of the Supreme Court's most powerful conservative intellect. Alito shares some of Scalia's legal views, but those who know the nominee describe him as less fiery in his rulings and less acerbic in comments from the bench.

Appearing with Bush and joined by his wife, Martha-Ann Bomgardner, and their two children, Alito described the "sense of awe" he felt about the Supreme Court, where he argued cases as a young lawyer in the solicitor general's office. He described the court's constitutional role as constrained.

"Federal judges," he said, "have the duty 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, always keeping in mind the limited role that the courts play in our constitutional system."

During his time on the appellate court, supporters said, Alito has stood out as a consistent voice for a strict interpretation of the law. Perhaps his most famous opinion came in the case of Planned Parenthood v. Casey , when in dissent he voted to uphold part of a Pennsylvania law requiring a woman to notify her husband before obtaining an abortion. The Supreme Court rejected that as unconstitutional and used Casey to reaffirm Roe v. Wade .

Alito wrote a ruling upholding a city-sponsored holiday display in Jersey City that included a creche and menorah as well as secular symbols such as Frosty the Snowman. He struck down a Newark Police Department policy forbidding officers to wear beards after two Muslims complained that it violated their religious rights. He argued that Congress did not have the power to ban the intrastate sale of machine guns. In a variety of other cases, he showed skepticism of court intervention in discrimination claims.

The large body of Alito's work over 15 years stands in contrast even to that of newly confirmed Chief Justice John G. Roberts Jr., who had served two years on the appellate bench before Bush nominated him. As a result, liberal organizations such as People for the American Way and the Alliance for Justice, which spent weeks probing Roberts's record before opposing him, immediately announced what the first group called a "massive national effort" to defeat Alito.

"Alito's confirmation could shift the court in a direction that threatens to eviscerate the core protections for women's freedom guaranteed by Roe v. Wade or overturn the landmark decision altogether," said NARAL President Nancy Keenan.

On the other side of the spectrum, Progress for America, a group with close ties to the White House, launched a $425,000 television advertising campaign and a $50,000 Internet blitz in support of Alito, including an instant Web site, . Other conservative organizations plan their own efforts, in a stark change from the Miers nomination, when most refused to help or outright opposed her.

"The rift within the base was healed at 8 a.m. today," said Jay Sekulow, chief counsel at the American Center for Law and Justice and a key White House adviser. "Bygones are bygones. Now we're all unified again."

Since Alito has expressed opinions on "every hot-button issue" in American society, Sekulow added, "you've got to prepare for a slugfest."

Aside from his writings, another issue that could provoke scrutiny was a case in 2002 when Alito, along with two other judges, threw out a lawsuit against Vanguard Group while having invested hundreds of thousands of dollars in Vanguard mutual funds. Alito rejected an accusation of conflict of interest, but the case was reheard by another panel.

Alito was on Bush's short list from the beginning. Back in July, when the president first picked Roberts, he also interviewed Alito, who was one of two serious runners-up along with Judge J. Michael Luttig of the 4th Circuit, according to aides. But as the president contemplated a second opening on the court, his priorities shifted to finding a woman, particularly one with experience not as a judge, which led to Miers.

After her nomination imploded Thursday, Bush turned back to his original finalists from July and settled quickly on Alito. "It was clear if the president was going to go for someone with judicial experience that Alito was his pick," the senior official said. "That made for a fairly predictable process once Harriet withdrew her name."

Within hours of Miers's departure, White House Chief of Staff Andrew H. Card Jr. was on the telephone with Alito. Bush called Alito the next day at 12:40 p.m. -- just as a special counsel was releasing an indictment of senior White House official I. Lewis "Scooter" Libby. But Bush did not need another formal interview. Instead, he flew to Camp David for the weekend with Card and Miers, in her role as White House counsel, to make his decision. "There was a lot of momentum behind Judge Alito," the official said. "I don't think there was a lot of gnashing of teeth."

Alito arrived in Washington on Sunday. He met with Bush in the Oval Office yesterday at 7 a.m., when the president offered him the post. Alito's family then joined them.

Bush, the official said, warned the children about the confirmation.

"Don't pay attention to what you hear about your dad," the aide quoted Bush as saying. "The process can be tough."

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