Justice Alito's Confirmation Is a Sign of Things to Come

Although there were no skeletons uncovered during the hearing process, no hidden views brought to light, and no apparent cause for alarm, Alito’s confirmation vote of 58-42 was one of the closest in U.S. history and it revealed a Senate sharply divided along partisan lines. Given his moderate record, his solid reputation among colleagues as a fair and temperate judge, and his long history of faithful government service, one must ask: why did Alito face so much opposition? Democratic Senators criticized Alito for being less than forthcoming in his answers to Senate Judiciary Committee members.

His vague answers to certain pointed questions failed to reassure them that he had a "mainstream" philosophy and temperament. Some Democrats felt that his lack of candor left them no choice but to reject his nomination. However, most appointees in recent years have similarly dodged litmus test questions by declining to provide details about how they might rule in a given case or how they would interpret a particular constitutional passage. In these instances, their imprecise responses, justified by claims of judicial independence and the propriety of reserving judgment until facts have been heard, were accepted by even the most curious of Senators.

Alito’s difficulty may also be subscribed to Democrats’ general frustration over their inability to influence the selection of nominees, since this season marks the first time in several decades that they have served alongside a Republican president as the Senate minority party. Previous Republican presidents have had to bypass their first choice candidates in favor of those who could win approval in a Democratically-controlled Senate. Yet, Senator Obama (D-IL) correctly noted that Republican victories in the Senate and in the White House give Republicans - not Democrats - the ultimate say in who gets appointed to the Supreme Court. However, it is more likely that the antagonism directed at Justice Alito during the confirmation process stemmed not from who he was, but instead from who he wasn’t. It is no secret that President Bush tapped Alito to take the place of retiring Justice Sandra Day O’Connor - yet for most Democrats, O’Connor is considered irreplaceable.

Not only is she the first female justice, which in itself has some significance for Democrats, but she also amassed a distinguished record of moderate, pragmatic decisions during her 24 years on the Court. More importantly for liberals, she often set aside her conservative ideology in favor of practical centrism. She was, for example, instrumental in reaffirming the core premise of Roe v. Wade in her 1992 opinion in Planned Parenthood v. Casey despite her personal opposition to abortion. Since then, O’Connor’s centrist position has rendered her the most powerful person on the Court.

She has consistently demonstrated a ready willingness to switch ideological sides and this has made her the power broker in key controversial cases. Last year, for example, she broke ranks with her usual conservative allies in order to join Justices Souter, Stevens, Breyer, and Ginsburg in ruling that a Kentucky courthouse display of the Ten Commandments was an unconstitutional violation of church and state.

Last year she also sided with the liberal justices to give male employees the right to claim gender discrimination on behalf of female students under Congress’s Title IX Gender-Equality-in-Education Act. Because O’Connor has supported important liberal precedents like Roe v. Wade during her tenure on the bench and has shown her readiness to side with her liberal colleagues in the name of compromise, the choice of her replacement becomes even more important for the preservation of a liberal voice on the Court. Alito’s confirmation could potentially re-tilt the Court to the right and the Democrats are unwilling to lose hard-fought ground. It is not surprising, then, that the Democrats would throw every available obstacle, including a filibuster attempt, at his nomination no matter how temperate or how mainstream his decisions might be.

With a number of justices becoming more advanced in age, there is the possibility that additional vacancies will open up before Bush leaves office. While it is unclear as to whom Bush would select in the future, one thing is certain: the stakes will be higher than ever before and the partisan rankling in the Senate will undoubtedly be nastier. In short, the worst is yet to come.

Jennifer Walsh, PhD, is an associate professor of political science.