Any assessment of the prospects for the Alito nomination must begin with the fact that Republicans hold the Senate. That matters — a lot. Under the Constitution the president and the Senate play the key roles in Supreme Court appointments. Simply put, the president nominates and the Senate approves — or fails to approve — the nominee. It makes sense to think that when members of the same party control both the White House and the Senate, a Supreme Court nomination is likely to succeed. And the history of Supreme Court nominations backs that up. David Brady, a professor of political science at Stanford and deputy director of the Hoover Institution, says that while two-thirds of all high court nominations have succeeded, the percentage goes up to 85 percent when senators of the same party as the president's are in the majority.
The Republican Senate is an obvious impediment for the liberal interest groups that have made judicial appointments a chief concern ever since Ronald Reagan nominated Robert Bork to the Supreme Court in 1987. It is hardly a news flash to report that those groups work intimately with Democratic senators and especially their staffs. When they succeeded in their effort to block the Bork nomination, it bears remembering, the Democrats controlled the Senate, 55 to 45.
Today, the Republicans are at 55. And so the influence of the anti-Alito groups stands to be limited. Earlier this year, only 22 senators — all Democrats — wound up voting against John Roberts, President Bush's choice to be chief justice. And among the Democrats who did vote for him was, surprisingly, Vermont's Patrick Leahy, the ranking minority member of the Senate Judiciary Committee.
Judge Samuel Alito will take his seat before that committee on January 9. But while it seems likely that more than 22 Democrats will oppose the judge, the nomination doesn't appear to be in trouble. The leading precedent for a failed nomination is, of course, Bork's. But in the run-up to the hearings, the Alito nomination has not tracked the same path as Bork's did.
Significantly, no Senate Democrat has followed the example of Ted Kennedy the day the Bork nomination was announced. Kennedy, you'll recall, made a short speech about "Robert Bork's America." It contained distortions and outright lies, and was thought at the time to be a tactical mistake. But it inspired the groups opposed to Bork, which totaled more than 300. Soon the Judiciary Committee chairman, Joseph Biden, joined Kennedy in opposing Bork. That was pivotal. With the advice and consent of senators who mattered, the groups carried out an intense political campaign against the nominee. As the hearings drew near, the presumption in favor of confirmation that exists even when the party opposite the president's controls the Senate was largely eroded.
But that presumption still holds in Alito's case. To be sure — and notwithstanding their weaker position in the Senate — the liberal groups have swung often and hard at Alito. And as in past confirmation battles, they have had help from the press. Yet survey data show that Alito draws the same levels of public support now as he did in November.
A new Washington Post-ABC survey conducted in mid-December found that 54 percent of respondents say the Senate should confirm Alito while 28 percent say it shouldn't. In the November Post-ABC poll, those numbers were 49 and 29, respectively. According to the Post's analysis of its surveys on both Alito and Roberts, Alito "is now about as popular as . . . Roberts was on the eve of his Senate confirmation hearings."
The political leaning of the electorate means that the liberal groups have a tougher sell. Nor do they have the field to themselves, as was the case when they smeared Bork. Indeed, a key lesson of the failed Bork nomination was that a political campaign against a nominee must be answered in kind — that politics must be fought by politics. Conservative groups now engaged include Progress for America, the Judicial Confirmation Network, and the Committee for Justice, among others.
The conservative groups have used paid and earned media to extol Alito's legal qualifications and character. And they have played defense, responding (rapidly) to criticisms of Alito's record as a Justice Department attorney and also of his opinions during his 15 years as a judge on the federal appeals court for the Third Circuit. But the conservative groups have done something else, too — they have made an issue of the political and legal agenda of the groups attacking Alito.
Last week, for example, the Committee for Justice released its study of the positions held by groups forming the anti-Alito coalition. Titled "Who's Out of the Mainstream?" the report concluded that "the views of mainstream America" are "exactly the ones coalition members are trying to circumvent in the courts."
The committee also has sponsored a television ad, which says of the anti-Alito activists: "They want to take God out of the Pledge of Allegiance and are fighting to redefine traditional marriage. They support partial-birth abortion, sanction the burning of the American flag." The groups, not accustomed to such engagement, have fired back-a "reprehensible scare tactic usually saved for gutter-style political campaigns, not for a Supreme Court nomination," the director of the Human Rights Campaign told the Washington Post, apparently without irony.
Alito's confirmation obviously is not a certainty. Judiciary Committee Democrats will try to create (ex nihilo) a "credibility" issue, and Ted Kennedy can be expected to argue that Alito should be disqualified by virtue of his conservative beliefs and associations. Alito, whose excellence as a lawyer is undenied, will be asked many more questions about his judicial record than was Roberts, who served on the bench just two years.
And the liberal groups working with Kennedy and his colleagues can be counted on to go into overdrive as the hearings progress, especially since they have more at stake with this nomination than they did with Roberts's. Roberts for Rehnquist was widely regarded as an even trade, jurisprudentially speaking. But if Alito, who would replace Sandra Day O'Connor, is confirmed, that will probably shift the court to the judicial right.
Still, remember the number 55, which also means the Republicans likely have a sufficient majority to change the Senate's filibuster rule (should the Democrats filibuster) and move to an up or down vote — one surely in Alito's favor. If the Democrats had a 55-to-45 edge, would Alito be likely to be confirmed?
Terry Eastland is publisher of The Weekly Standard.
By Terry Eastland