Bush To Dems: Boo!

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.



No one can reasonably complain about the credentials of 3rd U.S. Circuit Court Judge Samuel A. Alito Jr. as he begins the confirmation process that is likely to see him take a seat on the United States Supreme Court.

Alito has the experience, the training and the temperament for the job. In all of these senses he is closer on the sliding scale of political and legal suitability to the new Chief Justice, John G. Roberts Jr., than he is to the woman he succeeded as a candidate for the Court, Harriet Miers.

But Judge Alito also brings with him to this process a universally-accepted reputation as a rock-ribbed conservative jurist who is not afraid to get out in front of the curve when it comes to the types of social issues that get the president's base foaming at the mouth.

For example, he is to the right of the Court's current majority when it comes to abortion rights — he voted for a marital notice provision in an abortion law early in his career as a judge — and his ascension to Justice Sandra Day O'Connor's seat would immediately narrow that majority in practical ways.

If he gets to the Court in time, he might even have a say in the pending abortion rights case this term that will determine whether Congress can ban a certain type of late-term abortion procedure.

Alito also could change the Court's fragile balance when it comes to Establishment Clause cases involving religious symbols on public property. He's already on the record as favoring a weakened wall between church and state.

Moreover, he is on the record as favoring a strong executive branch at the expense of both Congress and the judiciary (and many would argue "civil liberties"), which relates directly to the current administration's stance toward the legal war on terror.

If right-wing interest groups were to offer to their constituents a pin-up poster for "Most Promising Justice," Judge Alito's glamour shot would be a best-seller.

And that's precisely why his candidacy for the Court is going to generate the political and legal donnybrook we never saw with the Roberts' or Miers' nominations.

Roberts, for the most part, got a pass because he had carefully avoided taking polemic positions during his brief tenure as a federal appeals court judge. Miers never got a chance to get a pass because she was unable even to make it to her hearing.

Alito is strong enough to get a hearing but not strong enough to warrant the deference the Senate Judiciary Committee, and the Senate as a whole, offered Roberts. If you are looking to the radar screen for signs of dark skies and bluster ahead, the Alito nomination is simply the perfect storm. A looming Category 5, nasty, spitting, roiling, barking dogfight.

The Alito nomination confirms that President Bush believes even from a weakened position that he can win a Senate fight with Democrats and moderate Republicans by energizing his conservative base.

Those loud voices on the right whom were so negative about Miers, and whom were even a bit lukewarm about Roberts, embrace Alito. He has delivered the goods for them from his current post for half a generation and there is very little reason to think that he would move to the center upon reaching the High Court.

  • Robb Todd

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