A Vacancy on the Court
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The Nomination of Samuel Alito

The Setting

With the O'Connor vacancy, President Bush was faced with a setting that was only slightly more favorable than the one confronting President Reagan with the Lewis Powell vacancy in 1987. Even more than O'Connor, Powell was a quintessential swing vote on the Court that was perceived to be equally divided between four to the left of center (Marshall, Brennan, Blackmun, and Stevens) and four to the right (Rehnquist, Scalia, White, O'Connor). Facing a potentially explosive setting (a -3.6 on our setting table), President Reagan tossed in a fireball in the person of Robert Bork, a distinguished academic and jurist who nonetheless would almost surely have joined Scalia and Rehnquist to form a strong conservative bloc of conservative activists on the Court had the nomination occurred in a more favorable setting for the president. The result was a controversial nomination, the likes of which had not been seen since the nomination of Louis Brandeis in 1916, and which generated a battle among advocacy groups in opposition and support that had never been seen. Bork was defeated by a Senate with a Democratic majority.

President Bush faces a similarly negative setting (a -3.04 on our table) but he has a strong Republican majority in the Senate, effectively 55-45, that Reagan did not. What he lacks at the moment is the personal approval rating regarding the job he is doing as president, one which now hovers around the 40% mark. The O'Connor vacancy featured two aspects that increased the potential for controversy over a more typical vacancy: O'Connor's sex and her position as the Court's median voter who became the critical 5th vote in a number of controversial and significant cases that split the Court into liberal and conservative blocs.

In choosing Samuel Alito, President Bush has tossed a white male conservative into the fray, albeit one with over 15 years experience on the Appeals Court. Whereas Harriett Miers was a true stealth nominee, based on the many cases in which he has authored opinions and dissents, Alito has made a name for himself— one of those names being "Scalito," meant to imply a little Scalia. Unlike Miers, Alito has a public record that addresses the significant constitutional issues of the day, none perhaps more important than his dissent in Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991). In his sole dissent, Alito argued that a Pennsylvania law requiring a wife to inform her husband of her intent to seek an abortion did not impose an undue or unreasonable burden. This case, of course, made its way to the Supreme Court where a 5-4 decision upheld the Third Circuit decision. Most pointedly, Justice O'Connor could be considered the swing or fifth vote in that decision by the Supreme Court [
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833(1992)]. Had she accepted Alito's argument, the case would have been decided in the other direction and the Pennsylvania law would have been upheld.

The Alito nomination is surely one that will pacify virtually all of the conservatives who were so vocal in their opposition to the Miers nomination. Alito would seem to bring both the judicial qualifications and the proper jurisprudential philosophy that they seek. Any controversy that this nomination generates will come from the left. To follow any emerging controversy, you should pay particular attention to the Web sites of the Alliance for Justice and People for the American Way. Early and vehement opposition will signal that controversy looms and a battle over the confirmation will likely ensue. This will especially be the case if key senators, particularly any on the Senate Judiciary Committee, announce opposition early on.

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Created on October 31, 2005 by GW