A Stark Division in Vote for Alito

After the most partisan Supreme Court battle in more than a decade, Samuel A. Alito Jr. was sworn in Tuesday as the 110th justice on the nation’s highest court, where he is expected to usher in a new era of judicial conservatism.

He took the oath minutes after the Senate voted 58 to 42 to confirm him to succeed retiring Justice Sandra Day O’Connor, a Republican nominee who became the court’s pivotal swing vote on such issues as abortion and gay rights.

Alito, 55, is the second justice to be confirmed to the Supreme Court in the last five months and is arguably the linchpin in Bush’s plans to leave a conservative imprint on the court. By most accounts, Alito is politically to the right of O’Connor, whereas Chief Justice John G. Roberts Jr., who succeeded the late William H. Rehnquist in September, replaced a fellow conservative.

Bush, who watched the vote with Alito from the White House, hailed the newly minted justice as meeting the criteria he promised during his presidential bids -- a conservative appointment in the mold of Justices Antonin Scalia and Clarence Thomas.

“A hopeful society depends on courts that deliver equal justice under law,” Bush said in his State of the Union address. “The Supreme Court now has two superb new members ... Chief Justice John Roberts and Justice Sam Alito.”

Alito attended the speech, dressed in his judicial robes. He was accompanied by Roberts, Thomas and Stephen G. Breyer.

Alito was Bush’s third choice to succeed O’Connor, who announced in July that she would retire. The president’s first choice was Roberts, but after Rehnquist died in August, he nominated Roberts as chief justice. His second choice was White House Counsel Harriet E. Miers, but she withdrew her name from consideration amid mounting opposition from conservative activists who said she lacked judicial experience.

The Senate’s vote on Alito’s nomination was one of the most partisan since the Constitution gave the Senate the responsibility of providing “advice and consent” on the appointment of federal judges. Four Democrats voted for Alito; one Republican voted against him.

Thomas is the only justice in American history who received more votes against his confirmation than Alito did. Thomas was confirmed in 1991 by a 52-48 vote.

Democrats said their vote was driven by Alito’s 15 years as a judge on the U.S. 3rd Circuit Court of Appeals, where they say he compiled a record of ruling against individual rights and civil liberties in deference to executive authority.

“As today’s vote makes clear, there is no consensus in the Senate or the country that Alito, a strong believer in unrestrained presidential power, is the right person for the court at a time when it will clearly be facing major issues of abuse of executive power,” said Sen. Edward M. Kennedy (D-Mass.), who led an eleventh-hour drive to block the nomination with a filibuster.

Democrats expressed concern over a 1985 job application for a position in the Justice Department in which Alito vouched for his political conservatism and expressed pride in his efforts to abolish racial quotas in hiring and to overturn Roe vs. Wade, the 1973 Supreme Court decision legalizing abortion nationwide.

“It is my belief that this nominee’s legal philosophy and views will essentially swing the court far out of the mainstream, toward legal philosophy and views that do not reflect the majority views of this country,” said Sen. Dianne Feinstein (D-Calif.), the only woman on the Senate Judiciary Committee. “I am very concerned about the impact Judge Alito could have on women’s rights.”

Republicans described the Democrats’ opposition as motivated primarily by increasing partisan tensions in Congress. They noted that in 1993 and 1994, most Republicans voted to confirm President Clinton’s more liberal nominees to the high court, Breyer and Ruth Bader Ginsburg.

“There are some of my colleagues, I’m sure, who voted their conscience. But a lot of it is over politics,” said Sen. Orrin G. Hatch (R-Utah), a former Judiciary Committee chairman. “I have found that the confirmation of judges probably is at the root of this very bitter partisanship that is going on in the Senate.”

Democrats countered that the president has deliberately fomented partisan strife.

“His campaign promise was to be a uniter, not a divider,” said Sen. Patrick J. Leahy of Vermont, the top Democrat on the Judiciary Committee. “This was a chance for the president to be a uniter -- he failed in that and the country is worse for it.”

Some Democrats acknowledged that politics was part of the equation, at least in the sense that they never had enough votes to stop the confirmation. Sen. Barack Obama (D-Ill.) said Alito’s confirmation was a direct result of Democrats’ failure to win the presidency and a majority in the Senate.

“Sooner or later, politics catches up with the Supreme Court,” he said. “If Democrats are consistently losing elections, then our views and our values will be less represented on the court.”

During his two presidential campaigns, Bush vowed to appoint conservative judges throughout the federal court system. Although a majority of federal judges and Supreme Court justices are Republican nominees, many GOP voters have expressed growing dismay over court rulings on socially divisive issues such as reproductive rights and religious expression.

Some Republicans, pointing to Justices O’Connor and David H. Souter, noted that appointing an apparently conservative judge does not always portend a future of conservative rulings.

“One thing about lifetime appointees is that they always surprise you a little bit,” Sen. John McCain (R-Ariz.) said.

The confirmation capped a year of deep contention in the Senate over judicial nominations, with Democrats threatening to use their only tool to block nominees: the filibuster.

But in the end, only about half the chamber’s 44 Democrats supported the filibuster against Alito, deciding that the political costs of blocking his nomination would be too high, especially in an election year.

Alito was born and raised in New Jersey, the son of an Italian immigrant. He graduated in 1972 from Princeton University, which he attended on an ROTC scholarship, and in 1975 from Yale Law School. The campus unrest that was prevalent during that period influenced his political conservatism, he later said.

Alito also later cited Princeton’s decision to abolish ROTC as the reason he joined Concerned Alumni of Princeton, a conservative group that advocated limiting the admission of minorities and women to the university. During his confirmation hearing, Alito insisted he never held such views and would not have joined had he known they were the basis for the group.

He joined the Reagan administration in 1981, working in the solicitor general’s office, where he argued 12 cases before the Supreme Court. He then became a deputy assistant attorney general in the Justice Department, followed by an appointment as U.S. attorney for New Jersey.

In 1990, President George H.W. Bush selected him to sit on the 3rd Circuit Court of Appeals in Philadelphia.

At 55, Alito will be one of the youngest members of the Supreme Court, joining 51-year-old Roberts and 57-year-old Thomas on the court’s conservative wing. The other conservative stalwart, Scalia, is 69.

By contrast, the more liberal justices are all older than 60: Justice John Paul Stevens, at 85, is the oldest member of the court, followed by Ginsburg, 72; Breyer, 67; and Souter, 66.

Justice Anthony M. Kennedy, a Reagan appointee often considered a centrist, is 69.

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Senate vote

Samuel A. Alito Jr. was confirmed to the Supreme Court in one of the most partisan victories in modern history.

For

Republican: 54

Democrat: 4

TOTAL: 58

Against

Democrat: 41

Republican: 1

TOTAL: 42

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Sources: Congressional Quarterly, AP