By Charles Babington
Washington Post Staff Writer
Wednesday, February 1, 2006
Samuel A. Alito Jr. was sworn in as the nation's 110th Supreme Court justice yesterday, marking a major victory for conservatives in their decades-old drive to move the court rightward, and alarming liberals who fear that long-standing rights might be in jeopardy.
By the narrowest margin since Clarence Thomas's 1991 nomination, the Senate voted 58 to 42, largely along party lines, to confirm Alito to succeed the retiring Sandra Day O'Connor, who often was the pivotal vote on a closely divided court. Alito, 55, was quickly sworn in by Chief Justice John G. Roberts Jr., the other conservative whom President Bush named to the nine-member court after 11 years without a vacancy.
Four Democratic senators voted for Alito, and one Republican -- Lincoln D. Chafee, who faces a tough reelection battle this year in Democratic-leaning Rhode Island -- voted against him. Roberts was confirmed 78 to 22 last fall, backed by every Republican and 22 Democrats.
Breaking ranks yesterday by backing Alito were Democrats from four states that Bush carried easily, and three of them face reelection this fall: Robert C. Byrd (W.Va.), Kent Conrad (N.D.) and Ben Nelson (Neb.). The fourth, Tim Johnson (S.D.), is up for election in 2008. All other Democrats and one independent voted against Alito's confirmation, and 54 Republicans voted aye. Conservatives hope the cerebral and relatively young Roberts and Alito will join Thomas and Antonin Scalia to form a long-lasting right-of-center bloc that will frequently attract at least one other justice -- possibly centrist Anthony Kennedy -- to overturn liberal rulings on church-and-state questions, property rights, and many other issues.
"I think their persuasive abilities as conservatives will have an effect on the court as a whole, particularly and hopefully on Justice Kennedy," Sen. Lindsey O. Graham (R-S.C.) said in an interview moments after the vote confirming Alito.
Liberal groups, meanwhile, framed Alito's confirmation in dire terms. "Unfortunately, the balance of the court has now tilted dramatically to the right, placing our fundamental rights and freedoms in jeopardy," said Nan Aron, president of the Alliance for Justice.
Bush said in a statement: "Sam Alito is a brilliant and fair-minded judge who strictly interprets the Constitution and laws and does not legislate from the bench. He is a man of deep character and integrity."
Yesterday's Senate vote reflected the challenge that Democratic candidates face in states that are solidly Republican in presidential elections.
The pro-Alito votes by Byrd, Conrad, Johnson and Nelson are best explained "by the absence of liberal activists in the Democratic ranks" in those states, said Bruce E. Cain, a political scientist who directs the University of California's Washington Center. In most other states -- even Arkansas and Louisiana -- enough hard-core liberals donate money and recruit voters in Democratic primaries to make a pro-Alito vote dangerous to senators such as Blanche Lincoln (Ark.) and Mary Landrieu (La.), Cain said. They might have to explain their Supreme Court votes in a general election, he said, but that is safer than infuriating party activists in a campaign's early stages.
Chafee faces a double dilemma in Rhode Island: a stiff GOP primary challenge by Cranston Mayor Stephen Laffey, and a likely strong Democratic opponent if he survives. Chafee's anti-Alito vote may entice more independent voters to back him in the Republican primary (at which independents can legally vote), which is vital to the senator's reelection hopes, said Brown University political scientist Darrell West.
Dating at least to the 1973 Roe v. Wade decision legalizing abortion nationwide, conservative activists have argued the need to place like-minded judges on the federal bench, especially the Supreme Court. Their mission gained new urgency in 1987, when the Senate rejected conservative nominee Robert H. Bork.
When voters in 2004 reelected Bush and gave Republicans 55 of the Senate's 100 seats, all the conservative strategists needed were some vacancies. Those occurred last year when O'Connor announced her retirement and Chief Justice William H. Rehnquist died of cancer.
Legal analysts say Alito's 15-year record as a New Jersey-based appellate court judge indicates he is decidedly more conservative than O'Connor. In a 1985 job application he said the Constitution does not protect the right to have an abortion, and he associated himself with the conservative movements of Barry Goldwater and Ronald Reagan.
Whether Alito will steer the court dramatically and quickly to the right is uncertain, several senators and activists said, noting that the court still has at least five justices who have supported Roe.
"There still is not a clear five-vote majority on the court, particularly on issues in the values conflict in this country," said Gary Bauer, president of the conservative group American Values. "But I do believe there may be close to five votes to at least move church-state issues a little more toward the conservative perspective. . . . The next vacancy, depending on who it is, will really be the mother of all battles."
Sen. George Allen (R-Va.) said Alito will have a big impact. "We have judges who strike down the Pledge of Allegiance because of the words 'Under God,' or allow local commissars to take homes -- not for a road or school but to derive more tax revenues," Allen said in a statement. "With Justice Alito on the Supreme Court, we have a person who I know understands that the role of a judge is to apply the law, not invent it."
Several abortion rights groups said Alito's influence may extend far beyond religious and property issues. "With the retirement of Sandra Day O'Connor, and the confirmation of Judge Alito, core legal rights for women are in serious jeopardy," including "the right to choose," said Marcia D. Greenberger, co-president of the National Women's Law Center. Debra L. Ness, president of the National Partnership for Women and Families, said, "The Senate today let down the nation and put our fundamental rights and freedoms at grave risk."
But groups seeking Roe' s overturn were delighted. "We believe that the confirmation of this excellent justice brings us one step closer to a day when the divisive issue of abortion can be returned to the people," said Peter A. Samuelson, president of Americans United for Life.