By Charles Babington
Washington Post Staff Writer
Tuesday, November 1, 2005
Senate Democrats will lead the opposition to Samuel A. Alito Jr.'s Supreme Court nomination, but a handful of Republican moderates could ultimately decide its outcome, several analysts and lawmakers said yesterday.
The roughly half-dozen GOP senators who support abortion rights are scrutinizing Alito's dissent in a major 1991 abortion case. If they determine that his judicial record or his answers to questions signal a willingness to overturn the 1973 Roe v. Wade ruling that legalized abortion, they will fall under heavy pressure to oppose him, said congressional scholars and analysts.
With Republicans holding 55 of the Senate's 100 seats -- and with Democrats raising the possibility of a filibuster, in which 41 senators could prevent a confirmation vote -- Alito can withstand few Republican defections if Democrats solidly oppose him. That is by no means certain, experts note, but it is possible.
"I think the moderate, or pro-choice, Republicans will likely determine the fate of this nomination," said University of North Carolina law professor Michael Gerhardt, a constitutional expert.
Julian E. Zelizer, a Boston University history professor who has written extensively on Congress, agreed. "This nomination is going to put pro-choice Republican senators in an extremely uncomfortable position," he said. "The reality is that most Republicans who are not strong pro-life advocates were much happier when the abortion issue was not on the front pages."
But Alito's nomination seems destined to put it there. In 1991, he was the lone dissenter in Planned Parenthood v. Casey , in which the U.S. Court of Appeals for the 3rd Circuit struck down a Pennsylvania law that required a married woman to inform her husband before having an abortion.
Alito's dissent was narrowly and justifiably crafted, his supporters say. But when the Supreme Court upheld Casey in 1992, on a 5 to 4 vote, it was viewed as a significant reaffirmation of a woman's right to obtain an abortion, and Alito's opinion is certain to trigger scores of questions at his Judiciary Committee hearing.
His first inquisitor will be Chairman Arlen Specter (R-Pa.), a moderate who supports abortion rights and is viewed with deep suspicion by the far right. The nomination "certainly puts Specter in a very awkward position," said Ross K. Baker, a congressional scholar at Rutgers University. "He has been so outspoken in being pro-choice, if he gets a hint that Alito would overturn Roe v. Wade , he would certainly be against his confirmation."
Yesterday, Specter met with Alito for more than an hour. He later told reporters the nominee signaled he would be reluctant to overturn any Supreme Court ruling that had been reaffirmed many times over many years, as Roe has been. "I think he went farther than [Chief Justice John G.] Roberts went" in agreeing that long-standing rulings deserve great respect, 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."
The Senate's other best-known Republicans who support abortion rights -- Susan Collins and Olympia J. Snowe, both of Maine, and Lincoln D. Chafee of Rhode Island -- issued cautious statements yesterday. Chafee said the Alito nomination "raises many concerns," and that the dissent in Casey "showed a narrow view of a woman's right to choose." A few other Republican senators, including Kay Bailey Hutchison (Tex.), generally eschew the "pro-choice" label but say the right to legal abortions under some circumstances should remain.
The notion of even a few GOP defections could prove worrisome to the White House. All 55 Republicans, plus 22 of the 44 Democrats, voted to confirm Roberts as chief justice Sept. 29. Alito is virtually certain to draw more Democratic opposition than Roberts did, making every Republican vote more important.
Several Democrats yesterday cited Alito's dissent in Casey and his opposition to the Family and Medical Leave Act in leveling criticisms that were notably sharper than those made in the opening hours of Roberts's nomination.
"This is a needlessly provocative nomination," said Sen. Patrick J. Leahy (Vt.), the ranking Democrat on the Judiciary Committee. Sen Christopher J. Dodd (D-Conn.) said, "I'm disappointed that it appears President Bush chose to nominate a top choice of the extreme right. . . . As the author of the Family and Medical Leave Act, I'm troubled that Judge Alito wrote the lead opinion in a case that would have weakened this law." Leahy and Dodd voted to confirm Roberts.
Such criticisms, coupled with nearly universal condemnation of Alito's selection by liberal groups important to the Democratic Party's base, prompted talk in the Capitol that Democrats may try to filibuster the nomination. Senate Minority Leader Harry M. Reid (D-Nev.) declined to rule out a filibuster, and several key Republicans signaled that such an effort would fail.
Sens. Lindsey O. Graham (R-S.C.) and Mike DeWine (R-Ohio), members of the bipartisan Gang of 14 that drafted a pact on judicial filibusters in May, said they almost certainly would oppose an effort to use endless debate to keep Alito's confirmation from reaching a Senate vote.