Bush Picks a Supreme Court Fight


WASHINGTON, D.C.—President Bush’s nomination of Samuel Alito to the Supreme Court this morning is a transparent—and embarrassing—move to promote a left-right fight over a court appointment as a device to shift attention from the debacle set off by Scooter Libby’s indictment Friday.

Both sides, Democrat and Republican, are urging Bush to stand up and apologize for his aides’ behavior and pledge to make a fresh start. This would be hard to do without dumping his leading adviser, Karl Rove, who remains in serious legal jeopardy. Instead, Bush is making a wild gambit that he can re-energize his right-wing base with a Supreme Court fight and push ahead with his conservative “mandate.”

The theory is that first, he must go back to basics and pick a conservative with judicial experience.

“Unfortunately, we’re at a time in our nation’s history where you have to have a demonstrated track record of a particular judicial philosophy,” said Republican Sen. John Cornyn of Texas, who supported the doomed nomination of Harriet Miers and is viewed as a potential nominee to the high court himself. “People won’t take your word for it even if you’re the president of the United States that someone like Harriet Miers had that judicial philosophy.”

Second, Bush needs a stalwart conservative like Alito to fight abortion, euthanasia, stem-cell research, gay marriage, etc.

Alito, who is sometimes compared to Justice Antonin Scalia, and who was put on the Third Circuit bench by Bush’s father, might seem to be just the man. Not only are his opinions solidly conservative, but he comes out of the Reagan era, when he served as an aid to Attorney General Ed Meese. By naming Alito, Bush is playing to the increasing political opposition he faces among the GOP old guard, especially those who served under Reagan.

In 1997 Alito wrote a minority opinion upholding Philadelphia’s right to put on a holiday display that included a Nativity scene and a menorah because the city also included secular symbols and a banner emphaziing diversity. He also was the single dissenter in a decision striking down a Pennsylvania law requiring women seeking abortions to consult their husbands. At the time, Alito wrote, “Economic constraints, future plans, or the husbands’ previously expressed opposition . . . may be obviated by discussion prior to abortion.” The case went on to the Supreme Court, which upheld the lower court’s decision six to three.

The late chief justice William Rehnquist cited Alito’s dissent as the basis for his own.

People for the American Way claim Alito is a leader in the right’s drive to prevent the federal government from enforcing civil rights. “According to one of Alito’s opinions, Congress had no authority to require state employers to comply with the Family and Medical Leave Act through payment of damages when they violate the law, a ruling that was repudiated by the Supreme Court. The late Chief Justice Rehnquist, a fellow ultraconservative, wrote the court’s decision. Alito also dissented from a ruling by the Third Circuit that Congress has the power under the Commerce Clause to restrict the transfer and possession of machine guns at gun shows.” Alito also takes position undercutting workers’s rights,the group said.