With his nomination of Samuel A. Alito Jr., President Bush has offered the clear-cut choice about the Supreme Court’s direction that activists on the right have been expecting -- even demanding -- throughout his presidency.
Activists on both sides believe the selection of Alito, a federal appellate judge with a staunchly conservative record, to replace moderate Justice Sandra Day O’Connor could crystallize the debate over issues such as abortion, civil rights and the court’s overall role in society more sharply than any nomination since President George H.W. Bush picked Clarence Thomas in 1991.
“This appointment clearly moves the debate out of the gray and into the black and white,” said Tony Perkins, president of the Family Research Council, a leading social conservative group. “This is an important moment in American history that has been decades in the making.”
But this confrontation might not unfold the way either side expects.
Democrats and their allied interest groups quickly mobilized for a fight, issuing much more critical statements than they did when Bush nominated John G. Roberts Jr. and Harriet E. Miers to the court.
But for all the fervor they displayed, Alito’s opponents face the challenge of generating significant public resistance to a nominee whose legal credentials are unquestioned. That hurdle proved far greater than Democrats expected during the confirmation of Roberts as chief justice in September.
Conversely, Bush faces the risk that a victory could impose a heavy cost. Even if opponents cannot generate enough pressure to block Alito’s Senate confirmation, a highly partisan and ideological fight could further damage Bush’s weakened position with swing voters -- and inflict collateral damage on Republican senators struggling with an inhospitable election climate for 2006.
“Bush will probably win this fight, but at what price?” said the top political advisor to one Republican senator, who asked not to be named when discussing Alito’s nomination.
If nothing else, the choice of Alito illuminated Bush’s political priorities for the weeks ahead.
After months of bad news and miscalculations -- which culminated last week in the indictment of Vice President Dick Cheney’s chief of staff, the 2,000th American military death in Iraq and the withdrawal of Miers’ nomination to the Supreme Court -- Bush’s approval rating has fallen to about 40% in recent polls.
Although Bush won’t face voters again, presidents with approval ratings this low have often seen their party lose seats in congressional midterm elections.
Bush has been losing ground on two fronts.
New ABC/Washington Post and CNN/USA Today/Gallup surveys show his approval ratings among independents falling to 35%.
But with the Miers’ nomination sparking an intense backlash among conservatives, Bush’s support among Republicans fell to 80% or less in the surveys, well below the levels that helped generate huge GOP turnouts in the 2002 and 2004 elections.
Almost all observers agree that the Alito pick signaled that Bush was most focused on healing the breach with his core supporters.
“If anything came out of [the Miers controversy], it was a reminder to the White House that Washington is about fighting -- and that it is much better to fight with your opponents than with your friends,” said social conservative activist Gary L. Bauer.
Almost instantly after the president’s announcement, the two parties lined up like football squads that couldn’t wait to begin banging heads.
Last week, Concerned Women for America, a leading social conservative group, helped sink Miers’ nomination by urging her withdrawal. But less than an hour after Bush introduced Alito and his family, the group issued a statement endorsing the nominee as “eminently qualified.” Other conservatives followed suit.
Conversely, liberal groups People for the American Way and the Alliance for Justice, which waited for weeks before formally opposing Roberts, issued statements opposing Alito on Monday morning. People for the American Way launched a “Stop Alito” website.
Ralph G. Neas, the group’s president, said the effort against Alito would be “totally different” from the Roberts fight. Roberts’ limited experience as a judge, he noted, forced opponents to research his record in the executive branch for weeks before mobilizing full-scale resistance to him. Alito’s 15-year record on the federal bench will allow opponents to frame the choice much more quickly, Neas said.
One clear difference between Alito and Roberts is the intervening experience of Miers’ failed nomination, said Andrew J. Taylor, a North Carolina State University political scientist.
By picking Alito after Miers withdrew under fire from the right, Bush increased his vulnerability to charges that the choice was a “capitulation” to conservatives, Taylor said. And that, he added, could make it easier for Democrats to argue that “the president is not governing for the mainstream.”
Many Democrats stressed that argument in their first reaction to Alito. Still, the selection could present Democrats with largely the same challenge they confronted with Roberts: generating decisive resistance to a nominee solely on ideological grounds.
Even critics such as Neas acknowledge that no one will question Alito’s credentials, which include degrees from Princeton and Yale, experience as a U.S. attorney and seven years in the Reagan administration’s Justice Department.
Nominees have sometimes been stymied by charges that they were too ideological, such as conservative Robert H. Bork in 1987. But the inability of opponents to inspire much opposition to Roberts suggests that without a controversy over ethics or qualifications, engaging the public in a full-scale battle over a Supreme Court nominee isn’t as easy as many in Washington expected.
Polls by the nonpartisan Pew Research Center for the People and the Press have found that, since Bork’s nomination, most Americans have not paid close attention to any Supreme Court confirmation except Thomas’ -- which produced explosive charges of sexual harassment. And in opinion surveys this year, about one-third of Americans expressed concern that Bush’s nominees were moving the federal courts too far to the right.
Neas and other critics predict it will be easier to fan public resistance to Alito than those numbers suggest, because his record includes controversial decisions in so many areas -- such as abortion and gun control -- and his confirmation as O’Connor’s successor could so palpably shift the court’s balance to the right.
“If confirmed,” Neas said, “Samuel Alito could literally be a walking constitutional amendment undoing precedents that go back to the 1930s.”
But one Republican strategist, who asked not to be named when discussing White House thinking on the nomination, said Alito’s genial personal manner and rhetorical restraint in his opinions would make it tougher than opponents expected to convert him into the sort of lightning rod that Bork became.
“Democrats won’t light a firestorm in the country, and they won’t light a firestorm in the Senate,” the strategist said.