Alito's confirmation marks new era for court

© Chuck Kennedy, KRT Campus

President Bush walks in with a smiling Samuel Alito '72, joined by his wife Martha-Ann Bomgardner, at a ceremonial swearing-in by Supreme Court Chief Justice John Roberts at the White House on Feb. 1.

Samuel Alito '72 was sworn in as the 110th justice of the Supreme Court on Feb. 1 after being confirmed by the Senate last week. Alito, the tenth alumnus to hold a seat on the high court and the first since 1955, is widely expected to tip the already conservative-leaning court further to the right.

The 58-42 Senate vote fell largely along party lines, with four Democrats — Robert Byrd of West Virginia, Tim Johnson of South Dakota, Kent Conrad of North Dakota and Ben Nelson of Nebraska — breaking from their party ranks to support Alito. Lincoln Chafee of Rhode Island was the sole Republican to vote against him.

The vote came after a Democratic attempt to mount a filibuster was defeated Jan. 30, when the Senate voted 72-25 to end debate.

Alito's final tally fell well short of Chief Justice John Roberts' 78 positive votes. Democrats resisted Alito's replacement of retiring justice Sandra Day O'Connor, a moderate conservative who often tempered the court's rulings on issues such as abortion.

O'Connor is "a national icon who has been a voice of reason and moderation on the court," Senate Minority Leader Harry Reid (D-Nev.) said before the vote. "This president has no mandate to move this Supreme Court and American law in a radical rightward direction. This is just what Alito's replacement of O'Connor will do."

Democrats' other longstanding reservations included Alito's alleged deference to executive power, his 1985 denial of a constitutional basis for abortion rights and his membership in the conservative group Concerned Alumni of Princeton (CAP), which critics say opposed the admission of women and minorities to the University.

But Republicans touted the nominee's credentials and intellect, arguing that Democrats were trying to block a well-qualified judge.

Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) said Jan. 31: "There's no doubt about his qualification in terms of education, professional career and his service on the court of appeals, and we have seen in the long history of the court that there's no way to determine in advance how a nominee is going to vote."

On his first day as justice, Alito disagreed with the Supreme Court's conservative contingent in a death penalty case, voting against Chief Justice Roberts and Justices Antonin Scalia and Clarence Thomas to uphold an execution stay for Missouri death row inmate Michael Taylor, who was convicted of murdering a 15-year-old.

This ruling has given liberals some hope Alito might prove to be like Justice David Souter, a Reagan appointee widely expected to rule conservatively but whose rulings have been quite liberal overall. Still, Alito's past death penalty rulings were somewhat mixed, suggesting his stance on this issue is an exception to an otherwise solidly conservative judicial philosophy.

Alito's no-frills, well-rehearsed testimony frustrated his opponents and sapped energy from the otherwise hotly-contested confirmation process. Excitement peaked midway through the committee hearings as Democrats probed Alito's CAP membership and stances on controversial issues, but waned when questioning turned up little new information.

Democrats were generally aggressive in their opposition to Alito, grilling him during the committee hearings and attempting a filibuster — but to no avail.

"They needed to show their base and activist organizations on the liberal side that they were true-blue, and that explains how they behaved as they did," prominent conservative legal scholar and University politics professor Robert George said.

"It hurt them with the public at large because they looked mean and highly ideological," he added, citing Byrd's speech that criticized his own party's handling of the nomination.

The growing inevitability of confirmation left a handful of moderate senators contemplating their votes carefully, recognizing Alito as a political hot potato. This was particularly true for Democrats from conservative states, among them the Alito-supporting Sen. Conrad.

"Red state Democrats have a very strong image in their mind of what happened to colleague [Sen. Tom] Daschle [D-S.D.], who was defeated by a candidate who defeated him on grounds that he was too liberal and who made the judiciary a major issue," George said.

If true to his reputation, Alito will join the ranks of Chief Justice Roberts and Justices Scalia and Thomas, all bona fide conservatives. The mostly like-minded Justice Anthony Kennedy will often lend them a crucial fifth vote, giving the conservatives an effective majority in many future cases.

"You have a solid block of judges who are dedicated to what conservatives regard as the proper interpretation of the Constitution: focus on the text, structure and historical interpretation of the document as opposed to the living Constitution view," George said.

"That block is also distinguished intellectually because when you add people of the quality of mind as John Roberts and Samuel Alito, the intellectual heft on the conservative side is quite remarkable," George said. "Even their harshest critics concede these are two intellectually exceptional jurists. In fact, that's part of what they fear about them."

But nuances abound. Despite its overall conservative disposition, the court will not overturn the 1973 Roe v. Wade ruling, George said. Likely subject to change, though, are secondary abortion issues such as spousal notification.

Alito might, for instance, cast the deciding vote in a "partial-birth abortion" case. The Court ruled in Stenberg v. Carhart (2000) that Nebraska's partial-birth abortion ban was unconstitutional, but George said that a ruling in favor of a ban — for which Alito's vote would be critical — would lead many states to swiftly enact such laws.

Alito could also cast the deciding vote in an affirmative action case, as it was O'Connor's vote that narrowly upheld the University of Michigan Law School's affirmative action policy in Grutter v. Bollinger (2003).