Jim Lobe

WASHINGTON, Oct 31 2005 (IPS) — By swiftly nominating Judge Samuel Alito to the decisive “swing” seat on the nine-justice Supreme Court, U.S. President George W. Bush Monday appeared determined to accomplish two urgent tasks.

First, he clearly hopes that public attention, which has been focused on his steadily declining poll numbers, Iraq, high oil prices and most recently, the indictment for perjury and other crimes last Friday of Vice President Dick Cheney’s powerful chief of staff, will move to the potential battle royal over the Court’s future.

Second, he is trying to rally his far-right base, which fiercely opposed his previous nominee and his long-time personal attorney, White House Counsel Harriet Miers, who withdrew her nomination last Thursday in the face of the furious and unexpected right-wing revolt against her.

With neither judicial experience nor a paper trail indicating any firm ideological commitments – she had contributed money to Democratic campaigns as recently as 1988 – Miers was seen by the far right as a betrayal of Bush’s campaign vow to appoint justices in the mold of Antonin Scalia and Clarence Thomas, the two most extreme members of the Court today.

“At least now the president is having a battle with his political opponents and not with his friends,” Gary Bauer, a right-wing heavyweight who opposed Miers, told CNN. “I will help him any way I can.”

By appeasing the right, however, Bush has done nothing to reassure Democrats, and a number of moderate Republicans as well, that he intends to reduce the nation’s polarisation over his presidency just one year before the midterm Congressional elections and when his own popularity and credibility are at an all-time low.

Democrats were quick to seize on that, as did Sen. Patrick Leahy, the ranking Democrat on the Senate Judiciary Committee that will now consider Alito’s nomination. He called the nomination “needlessly provocative”, adding that at Bush’s weakest moment, he “has chosen to reward one faction of his party, at the risk of dividing the country”.

Moreover, the fact that Bush, after successfully getting John Roberts confirmed as Chief Justice this summer, had chosen yet another white male to the Court – passing over his Latino attorney general, Alberto Gonzales, precisely because the far right had similar reservations about him as with Miers – was also stressed by Democrats.

If confirmed, Alito, who has spent the last 15 years on the Philadelphia-based Third U.S. Circuit Court of Appeals, would succeed retiring Justice Sandra Day O’Connor, who was herself considered quite conservative when she was appointed to the Court by former President Ronald Reagan, but who subsequently moved toward the centre, particularly on human rights issues.

Because the Supreme Court is a particularly powerful institution and because O’Connor has often cast the deciding vote on controversial questions, whoever replaces her could well determine the Court’s future course, at least over the next few years. That was not the case with Roberts’ confirmation last summer because he was named to replace the previous chief justice, William Rehnquist, whose judicial and constitutional philosophy was very close to that of Scalia and Thomas with whom he frequently voted.

Since the stakes are so much higher, the battle over Alito will almost certainly be much more fiercely fought, a fact that will no doubt further the White House’s goal of diverting public attention away from Bush’s problems in Iraq and elsewhere.

Indeed, if the Senate’s 45 Democrats decide to oppose the nominee, they could launch a filibuster, a procedural device that permits a minimum of 40 senators to halt Senate business indefinitely and thus prevent a vote on confirmation.

Earlier this year, Republicans threatened to change Senate rules for the first time in more than a century to prevent filibusters on judicial nominees, a manoeuvre dubbed “the nuclear option” because of its potential for creating a major constitutional crisis.

It is too soon to know whether a filibuster is likely, although both sides Monday hinted that such an outcome could not be ruled out. “If the Democrats look for a fight, we’ll be there ready to fight,” said Majority Leader Bill Frist. “The American people deserve fair up-or-down votes. I hope it doesn’t come to a filibuster.”

Alito, the son of an Italian immigrant whose academic record propelled him into elite universities, has been referred to by detractors as “Scalito”, a reference to Scalia, the Court’s most outspoken, caustic and aggressive right-winger. But unlike Scalia, Alito, by all accounts, is unfailingly polite, soft-spoken, and respectful of those with whom he disagrees.

He certainly did not raise red flags when nominated by Bush’s father 15 years ago; he was confirmed unanimously by voice vote.

But he has compiled a record that is clearly of great concern to interest groups that together constitute the activist core of the Democratic Party, none of which is perhaps more important than women’s and civil rights organisations.

In one case, Alito voted to uphold a provision of a Pennsylvania law that required a woman to notify her husband before obtaining an abortion. The Supreme Court explicitly rejected Alito’s view in upholding its ground-breaking 1976 Roe v. Wade decision that affirmed a woman’s absolute right to an abortion in the first trimester.

“If George Bush is successful in confirming Judge Alito,” warned Kate Michelman, a long-time abortion activist, “Roe v. Wade and a woman’s right to choose, as well as the right to privacy from government could be lost for future generations of Americans.”

Other activists said Alito, a member of the right-wing Federalist Society, which, among other things, strongly opposes the application or even citation of international legal norms or conventions by U.S. courts, has tried to limit the application of federal law against race- and disability-based discrimination to the states.

In another case, Alito ruled that Congress had no authority to require state employers to comply with a federal law on family and medical leave, but was overruled by the Supreme Court. He also dissented from a ruling by the Third Circuit that Congress has the power to restrict the transfer and possession of machine guns at gun shows.

“Right-wing leaders vetoed Miers because she failed their ideological litmus test,” complained Ralph Neas, president of People for the American Way, a civil-liberties watchdog. “With Judge Alito, President Bush has obediently picked a nominee who passes that test with flying colours. He has chosen to divide Americans with a nominee guaranteed to cause a bitter fight.”