Why abortion isn't likely to keep Alito off the court

PHILADELPHIA — The easy way in which Samuel Alito appears to be ascending to the Supreme Court would be a big blow to conventional wisdom.

It was widely assumed, back when Justice Sandra Day O'Connor announced her imminent retirement, that Senate Democrats — backed by majority public support — would mount a serious fight to derail any nominee who appeared skeptical about the constitutional right to an abortion. In the wake of President Bush's oft-stated plan to move the judiciary rightward, abortion was supposed to be the line in the sand.

Wrong.

After the Senate Judiciary Committee votes next week to approve Alito, the full Senate appears poised to confirm him as well, despite his documented skepticism (before he became a judge) about a constitutional right to an abortion, and despite his refusal last week, during confirmation hearings, to view the 1973 abortion ruling as the settled law of the land. Respect for legal precedent is important, he said, but it "is not an inexorable command." To Roe defenders, that remark seemed to imply that Alito had the ruling in his cross hairs.

Two decades ago, as a Justice Department lawyer preparing for an abortion case, he mused in a memo, "What can be made of this opportunity to advance the goals of overturning Roe v. Wade ... ?" And when asked last week about another letter that he wrote at the Justice Department — he contended at the time that "the Constitution does not protect a right to an abortion" — Alito didn't distance himself from that view, and refused to say whether his thinking has since changed.

But it turns out that Senate backers of Roe won't make abortion a litmus test. A few moderate Republican senators — the swing vote in that chamber — support abortion rights, yet none is opposing Alito. That list starts with Sen. Arlen Specter, R-Pa., the Judiciary chairman. And while most Democratic senators paint themselves as champions of the right to choose, none appears determined to ensnare Alito in a protracted filibuster on the Senate floor.

Liberals may well be wondering why. At a time when, according to national polls, roughly 60 percent of Americans support a constitutional abortion right, and nearly 70 percent view an anti-Roe nominee as unacceptable, why have the abortion-rights senators signaled a willingness to go belly up?

Democratic activists and nonpartisan analysts cite some overlapping reasons:

• Senate Democrats, while strongly influenced by the liberal abortion-rights groups, nevertheless are worried about further alienating the swing-voting, culturally conservative voters who are deeply ambivalent about abortion.

"On the one hand, those voters don't want to see abortion criminalized across the board," centrist Democratic activist and blogger Marshall Wittmann said Tuesday, "but, on the other hand, they'll accept restrictions on the procedure, such as [pregnant] girls being required to tell their parents," or bans on late-term abortions.

Millions of these voters used to be Democrats, but now view the party as unacceptably liberal on social issues and intolerant toward those who have qualms about abortion. At this point, Wittmann believes, "it would be absolutely catastrophic if the party was solely defined by the issue of 'abortion on demand.' "

• While there's support for Roe in the polls, public sentiment on abortion is nuanced. Karlyn Bowman, who analyzes polls at the conservative American Enterprise Institute, points out, Americans are "deeply ambivalent. ... They believe in the sanctity of life and in the importance of individual choice."

Most important to the Alito debate, landslide majorities support restrictions: spousal and parental notification, 24-hour waiting periods and bans on late-term abortion.

Liberal interest groups have trumpeted, as evidence of extremism, the fact that Alito once upheld the right of the Pennsylvania Legislature to require spousal notification — but the latest polls indicate that Alito's thinking on that issue is squarely in the mainstream.

• Support for Roe notwithstanding, Americans generally favor Alito's confirmation because they believe that a president should have the right to appoint the person of his choosing.

• Alito, during the hearings, never uttered the kind of inflammatory sound bite that can trigger grass-roots opposition. "The Democrats couldn't smoke him out, even though you can be sure that he has clear opinions on abortion," political analyst Alan Abramowitz said Tuesday. Alito wasn't going to feed the opposition anyway; reticence at these hearings has become de rigueur, ever since Robert Bork killed his nomination in 1987 by speaking too openly about his views. Blunt candor is a handicap in these polarized times.

Abramowitz, the Georgia analyst who has long tracked abortion and public opinion, doesn't see Alito as a threat to Roe anyway: "Most people don't really think the court will overturn Roe. These judges are pragmatic. They're better off nibbling at Roe around the edges, approving more restrictions. Because if they did overturn Roe, it would ignite a national firestorm, and for conservatives that's the worst thing that could happen," because the pro-Roe majority — including many Republicans — would then be galvanized."

Democrats have sought to claim that Alito has been unfairly stonewalling the public — as Delaware Sen. Joe Biden told Alito, "They're entitled to know what you think" — but Democrats were talking differently back in 1993, when President Clinton nominated Ruth Bader Ginsburg; as Biden told her that summer, "You not only have a right to choose what you will answer and not answer, but in my view you should not answer a question of what your view will be on an issue that clearly is going to come before the court in 50 forms, probably, over your tenure on the court."

Senate Democrats — some of whom will vote for Alito anyway, because they hail from red states — sense that abortion isn't a first-tier issue right now. Americans may support Roe generally, but few seem riveted about whether the ruling might be reversed. The latest Harris poll reports that 27 percent of Americans view the war in Iraq as their top concern; 2 percent cite abortion.

Democrats Max Baucus of Montana, Barbara Mikulski of Maryland and Edward Kennedy of Massachusetts all announced Wednesday they will vote against Alito, The Associated Press reported, but Sen. Ben Nelson of Nebraska announced Tuesday he will support Alito, the only Democrat so far to do so.

Several other Democrats are expected to make their votes public today, including Sen. Patrick Leahy of Vermont, the ranking Democrat on the Judiciary Committee. Leahy and two other committee Democrats — Russ Feingold and Herb Kohl, both of Wisconsin — voted for now-Chief Justice John Roberts' confirmation, as did Nelson.