 By MARC SANDALOW San Francisco Chronicle November 02, 2005
Republicans see an opportunity to install a lasting conservative majority on the high court as they characterize Democrats as obstructionists who try to accomplish in court what they cannot accomplish through legislation. Democrats sense a chance to portray their opponents as reactionaries who would set back the causes of civil rights, workers and social justice and the president as a leader beholden to the demands of his party's far right wing. After a surprising respite from the judicial war that dominated Washington last spring, Bush's decision Monday seemed likely to resurrect the fight over filibusters, activist judges and the political right's clout at the White House. Sen. Barbara Boxer, D-Calif., said a filibuster is "on the table - it has to be on the table," after describing the Alito choice as a capitulation to the right. Most senators chose their words carefully so as not to appear biased before the confirmation process gets under way. Yet there was an unmistakable sense from both sides that "we're ready to rumble," as Family Research Council President Tony Perkins told ABC News. Bush's past two nominees have defied simple ideological labels, deferring the battle that had been simmering with greater and greater heat as the court went a record 11 years without a vacancy. John Roberts, who dazzled some senators with his mastery of constitutional matters and confounded others with his short judicial paper trail, won the support of half the Democrats in his confirmation vote as chief justice. White House counsel Harriet Miers' complete lack of a judicial record puzzled senators from both parties about precisely what she stood for, relegating the debate over judicial philosophy to the background. But the nomination of Alito, an unabashed conservative jurist who Bush boasted has more judicial experience than any Supreme Court nominee for the past 70 years, creates a straightforward fight over legal philosophy. The nomination takes on added significance because Alito would replace Justice Sandra Day O'Connor, who is regarded as the court's pivotal swing vote, often providing the deciding balance to the conservative or liberal side. While replacing the late Chief Justice William Rehnquist with a conservative such as Roberts was not expected to shift the court's ideological balance, replacing O'Connor with Alito would likely fulfill Bush's campaign promise to move the court decidedly to the right. "We're going to make sure that Americans understand what is at stake," said Ralph Neas, president of People for the American Way, a liberal group that has taken a lead role in opposing Bush's judicial nominees. Neas said his organization will mobilize its 750,000 members to "wage a massive national effort to defeat Alito's nomination," asserting that "replacing a mainstream conservative like Justice O'Connor with a far-right activist like Samuel Alito would threaten Americans' rights and legal protections for decades." On the other side of the political spectrum, conservatives said the nomination finally will allow them to make the case that they support judges who interpret the Constitution, while Democrats support "judicial activists" who legislate from the bench. "This is a very healthy public debate," said Wendy Long, counsel to the Judicial Confirmation Network, which claims 60,000 members and a $3 million advertising budget dedicated to confirming conservative picks to the court. "It's long overdue." Bush wants the nomination process completed by year's end, but it could well take longer. If Democrats decide to filibuster, they will need to hold together at least 41 of their 44 members, which will be a tough task in the case of a nominee whose legal credentials - regardless of his ideology - are so strong. Democrats also may face a threat that Republicans will use their majority power to ignore the filibuster, prompting a battle over Senate procedure that strongly favors the majority party. But even short of a filibuster, debates on such matters as abortion, gay marriage, workers' protections and environmental regulations, which are likely to assume a high profile during the confirmation process, could hold consequences for the 2006 congressional elections and the 2008 presidential race. By focusing on selected rulings by Alito, such as his lone dissents in landmark rulings that struck down a Pennsylvania law requiring a woman to inform her husband before receiving an abortion and that outlawed the possession of machine guns, Democrats believe they can make a vote to confirm Alito a political handicap in the 2006 elections.
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