Alito's nomination sets up bitter fight

WASHINGTON — President Bush on Monday offered up a Supreme Court nominee guaranteed to rally his fractured Republican base. But the choice of Judge Samuel Alito appears certain to produce a battle with the Democrats that will dominate the country's politics heading into next year's midterm elections.

The nomination brought a fresh eruption of the partisan warfare that has defined the Bush era, and it set the stage for the battle many predicted four months ago when Justice Sandra Day O'Connor, the court's swing vote on many key issues, announced her intention to retire.

With the ideological balance of the court in question, partisans on the left and right moved swiftly to the barricades. Senate Democrats declined to rule out a filibuster to block Alito, and Republicans renewed talk of invoking the "nuclear option" if necessary to prevent one.

Alito, 55, is a 15-year veteran of the 3rd U.S. Circuit Court of Appeals in Philadelphia, where he participated in 3,500 cases and wrote about 300 opinions. He was named to the job by Bush's father. Alito's views on abortion have angered liberal groups and could drive a handful of moderate Senate Republicans into an alliance with Democrats.

Even if Democrats can't defeat Alito, his confirmation could provoke them to filibuster, a parliamentary maneuver in which a minority of senators blocks votes until 60 of the 100 senators vote to end debate.

"Gang of 14"

The potential for a filibuster puts the spotlight on a bipartisan group of 14 senators who agreed in May to hold together against a Republican threat to invoke the "nuclear option": blocking the ability to filibuster judicial nominees. The 14 agreed to support or prohibit a filibuster only if "extraordinary circumstances" warranted. For those 14, the question is whether the Alito nomination meets that test.

One key member of the group, Sen. John Warner, R-Va., said Monday that after the Judiciary Committee's hearings, "there is a potential for the Gang of 14 to perform a pivotal — if not decisive — role."

But Sen. Arlen Specter, R-Pa., chairman of the Judiciary Committee and a supporter of a woman's right to choose abortion, said such a confrontation might not occur. "I don't think there's any basis for a filibuster here," he said, adding the Senate may not dispense with the nomination until the new year.

Specter, who's known Alito for about 20 years, said the judge voiced support for the legal foundation of Roe v. Wade, the landmark 1973 abortion-rights case, during a private meeting Monday.

Specter said Alito described Griswold v. Connecticut — a 1965 case that established the right to privacy on which Roe turns — as "good law." He said Alito also indicated that the longer a decision was in effect and the more times it was reaffirmed, the more "extra precedential value" it had.

In his 15 years on the appellate court, Alito has stood out as a consistent voice for a strict interpretation of the law. Perhaps his most famous opinion came in the case of Planned Parenthood v. Casey, when in dissent he voted to uphold the part of a Pennsylvania law requiring a woman to notify her husband before obtaining an abortion. The Supreme Court rejected that as unconstitutional and used Casey to reaffirm Roe v. Wade.

Healing splits within GOP

Given the state of his presidency and party, Bush may have had no other choice than to name a Supreme Court candidate who would help heal the divisions within the Republican coalition, even at the risk of further alienating voters in the center. Democrats were convinced the choice would move Bush's image irrevocably to the right, but some Republicans said this is the kind of fight that could help turn around Bush's troubled presidency.

"The dispute over [Harriet] Miers' nomination shows that they're not adept at dealing with discontent on their own side," said Ron Klain, former chief of staff to Vice President Al Gore. "This is a president who has never governed from the center and who is clearly uncomfortable with the crosswinds that come with that. So they went back to familiar turf."

But Republicans said the only sensible recovery strategy for the embattled president begins with putting his own coalition back together. After months of bad news, the Republicans need a symbol around which to unify — and for conservatives, Alito and changing the court may be precisely the answer.

Republican Vin Weber, a former representative from Minnesota, said a major fight with Democrats was inevitable after the Miers withdrawal and that Bush was wise to find a nominee who would be received enthusiastically by party conservatives. In the long run, he predicted, the fight would help Republicans more than Democrats.

Weber said a successful fight to confirm Alito would leave Bush and the Republican Party in "dramatically better shape" by early next year. But Democrats said they can foresee no significant risk in waging an all-out battle, which they believe will leave the Republicans further to the right than before, even if Alito wins confirmation.

On par with Scalia

That assures the kind of confrontation the country has not seen over a high-court nomination since Bush's father picked Clarence Thomas in 1991.

Conservative leaders who helped force Miers to pull out Thursday rejoiced at Alito's selection, seeing in him the philosophical equivalent of Justice Antonin Scalia.

"Judge Alito has gained the respect of his colleagues and attorneys for his brilliance and decency," Bush said in introducing his latest choice. "He's won admirers across the political spectrum. I'm confident that the United States Senate will be impressed by Judge Alito's distinguished record, his measured judicial temperament and his tremendous personal integrity."

Critics wasted no time disputing that. Senate Minority Leader Harry Reid, D-Nev., Sen. Charles Schumer, D-N.Y., and the liberal group People for the American Way rushed out statements blasting the nomination even before Bush announced it at 8 a.m. Eastern time. By the day's end, much of the organized left had joined the chorus, including the AFL-CIO, NARAL-Pro Choice America, the Alliance for Justice, MoveOn.org and the Leadership Conference on Civil Rights.

"After insisting that Harriet Miers shouldn't even get a hearing because she couldn't prove she was extreme enough, the far right has now forced the president to choose a nominee that they think has views as extreme as their own," said Sen. Edward Kennedy, D-Mass.

Reid, who had encouraged Bush to pick Miers, said the Senate would have to investigate whether Alito "is too radical for the American people" and complained of another white male nominee. "President Bush would leave the Supreme Court looking less like America and more like an old boys club," Reid said.

If confirmed, Alito will join a nine-member court that has one woman and one African American. He would be the second Italian American, after Scalia, and its fifth Roman Catholic, along with Roberts, Scalia, Anthony Kennedy and Thomas. Justices Ruth Bader Ginsburg and Stephen Breyer are Jewish. Bush had considered appointing the first Hispanic justice but opted against the known candidates.

"Credentials first"

Charlie Black, a veteran GOP strategist and outside adviser to the White House, said Democrats may overestimate how much middle-of-the-road voters will be drawn to an ideologically polarizing debate over Alito's views. "I think average Americans — moderates, independents — look at the qualifications and credentials first, then will want to get to know the person better through the hearings," Black said.

Noting that new Chief Justice John Roberts proved not to be a polarizing figure because of his demeanor and intellect, Black said, "People who know Alito think the same thing might happen."

With years on the appeals court filling out a top-tier legal background, Alito's credentials will be hard for Democrats to challenge. And his demeanor is said by most who know him to be smoother and less confrontational than that of Scalia, a hero of the right.

Even so, Alito's paper trail is far longer and more provocative on the most-controversial social issues than was Roberts'. Senate Democrats, including some who voted for Roberts, issued tough, skeptical statements in response to his nomination.

Sen. Patrick Leahy of Vermont, the ranking Democrat on the Senate Judiciary Committee and a supporter of the Roberts nomination, called the president's choice "needlessly provocative," saying the president rewarded a narrow wing of the Republican Party rather than the country as a whole.

If GOP conservatives were energized by Bush's choice, Republican moderates in the Senate were left in an uncomfortable position. Sen. Lincoln Chaffee of Rhode Island issued a statement outlining a string of concerns about Alito's record. Other moderates remained silent.

Their votes will be the target of competition between the White House and the Democrats, as will the votes of the seven Democrats in the Gang of 14. "If you lock your moderates down, the likelihood of filibuster becomes less likely," one GOP lawmaker said.

Material from Knight Ridder Newspapers and Gannett news service is included in this report.