The Battle We Needed
With President Bush's nomination of Samuel Alito, Republicans have received exactly what they wanted a solid conservative and exactly what they needed a fight that will re-galvanize the conservative base.
There should be absolutely no doubt among conservatives as to Alito's credentials, whether philosophical, academic or those related to experience. He has developed a reputation for a commitment to the rule of law and judicial restraint demonstrating his understanding that the proper role of a judge is to strictly interpret and apply the law and the Constitution, rather than legislate personal opinions from the bench.
Judge Alito has more judicial experience than any Supreme Court nominee in the past seventy years. In his fifteen years on the Third Circuit Court of Appeals he has participated in thousands of cases and written hundreds of opinions. He has been unanimously confirmed by the US Senate twice; once as a US District Attorney, and as a circuit judge in 1990.
Among his opinions, he voted to uphold Pennsylvania's right to require that husbands be notified by their wives prior to the abortion of their unborn children; he held that Christian and Jewish symbols could be displayed with other more secular holiday symbols, as it id not violate the separation of church and state; and he has ruled that anti-harassment policies that prevented Christians from preaching against homosexuality were out of bounds.
Republicans have fought for at least a generation to build a more judicially conservative majority on the Supreme Court. Many presidential elections and several lackluster appointments later we're close to making forward progress. Of the five Regan/Bush appointees only Antonin Scalia and Clarence Thomas have been reliable conservatives. Replacing O'Connor with Alito will likely have the effect of making Kennedy the new "swing" vote on the high court, which is better than O'Connor filling that role as Kennedy tends to be slightly to her right in terms of judicial philosophy.
By winning now, conservatives put themselves in a position to achieve a true conservative majority with the next nomination, should Justice Stevens be replaced prior to the next presidential election.
Further, Republicans win by rallying their base around a cause it holds dear. It is no secret that conservatives have had their disagreements with the administration. Issues such as federal spending, Medicare expansion and immigration policies are sore spots, but they have not caused all of the various conservative factions to revolt simultaneously. Judicial reform and by extension judicial nominations is more dear to the hearts of conservatives as the judiciary is, like it or not, an institution that touches virtually every aspect of our society, government and politics. It has strayed far outside the lines laid out by Mr. Maddison.
For conservatives, the judiciary is non-negotiable. They want surety, and Bush has now given them that in the person of Sam Alito.
Recent polls that have shown the President's approval ratings dipping below forty percent (much to the media's delight) were taken in the aftermath of the Miers nomination and reflect the disenchantment of the GOP base. Early this week, a Rasmussen poll taken after the Miers withdrawal showed the President with a 43% approval rating, indicating more Republican support. Given the unanimous accolades among conservatives for the Alito nomination, it is likely that the post-Alito polling with put the President back around the 50% mark.
It is also a fight that Republicans need because it is one they can win. Republicans have elected Senate majorities in every election since 1994 and they are longing for the leadership to act like a majority and to fight the important fights. Failure to fight and win when victory is possible will demoralize the party base.
The GOP Senate caucus seems to realize this. So far, two of the seven Republican members of the "gang of fourteen", which brought us the filibuster compromise this past May, have committed to support Alito as well as to support a filibuster rules change if necessary. This almost guarantees at least fifty votes for such a course of action, with Cheney breaking a tie.
What we now can have is something else conservatives have wanted for a long time a high-profile debate about the nature and role of the federal judiciary in the American system. Issues such as gay marriage and property rights are the most recent examples in a long string of abuses by an activist judiciary that have risen on the political radar screen. The President should welcome such debates, as they revolve around issues where conservatives (and the GOP) are on solid ground with the American people.
These are fights we can win and the Alito nomination is a great place to start. Time to button up and do battle.