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Alito: The pendulum swings back?

So, it's official: the new nominee is Third Circuit Judge Sam Alito.

Shorter version of President Bush's introduction of Alito this morning: "Hey, everyone: he's not Harriet Miers! This one's qualified!"

Speaking of the Miers-Alito contrast, does this mean that we've finally recovered from the Bork fiasco? In 1987, Reagan's nominee Robert Bork was, well, Borked. Ted Kennedy took everything Bork ever wrote in his extensive career, twisted it beyond recognition, and turned an admittedly conservative judge into a monster. This led to an almost two-decade long period in which the strategy of Republican presidents was to give us nominees who were easily confirmable because they hadn't written much, hadn't done much controversial, had no history to be twisted. Miers was the apotheosis of this Stealth Nominee strategy: a nominee with no written record because she had no record of any sort.

Alito, while not a rigid ideologue -- though he's sure to be painted as one by the leftist advocacy groups such as NARAL, NOW, PfAW, and AfJ which use judicial fights as fundraising tools -- is in other respects the polar opposite of Miers. Where Miers spent her whole legal career in private practice, Alito was in government, working first in the Office of the Solicitor General, then as a federal prosecutor, and finally as a federal judge. Where Miers never wrote anything beyond some bland pablum for the bar association newsletter, Alito wrote hundreds of opinions. Where Miers did almost no work in federal courts, Alito argued at the Supreme Court. Where Miers was virtually unknown outside of Dallas legal circles, Alito was on most short lists for the Court.

While Alito is certain to be demagogued, he's also very likely to be approved, barring the revelation of some personal skeleton in his closet. So have we finally turned the corner on the notion that conservative nominees must be unknowns in order to be confirmed? Both Roberts and Alito have long paper trails -- Alito's being particularly significant, since it represents a judicial background. (Nobody will be able to claim they need more paperwork on him before making a decision.) So hopefully what we have now is a new paradigm, in which conservative presidents no longer feel as if they have to hide their nominees' backgrounds in order to be confirmed.

(Of course, this confirmation fight will still be muted by the fact that Alito is filling a fellow conservative's seat on the Court even if the left wing groups are trying to reinvent Sandra Day O'Connor as a liberal for rhetorical purposes. Wait until Stevens steps down. Then the real battle begins.)

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Comments (4)

Monica:

"Alito, while not a rigid ideologue -- though he's sure to be painted as one by the leftist advocacy groups such as NARAL, NOW, PfAW, and AfJ which use judicial fights as fundraising tools ..."

What's nice is that right-wing advocacy groups don't need money to keep their doors open. Progress for America, ACLJ, Operation Rescue, etc. don't have fundraising or development departments, and they CERTAINLY don't use issues like the Supreme Court in order to raise money. They don't have donors. They pay their electric bills with... prayer, I guess.

That's just such a tiresome, silly argument to make.

Dave:


While Alito is certain to be demagogued, he's also very likely to be approved, barring the revelation of some personal skeleton in his closet. So have we finally turned the corner on the notion that conservative nominees must be unknowns in order to be confirmed?

I don't know - if the Republicans were still a minority in the Senate (as they were when Bork was borked) you would likely have seen a different nomination.

Monica,

Of course conservative groups need to fundraise (although Operation Rescue? Does that even exist anymore? In any case, I don't think they lobby on Court nominations).

But I don't recall any major conservative opposition campaigns against Ginsburg or Breyer. I don't remember right-wing lobbying groups turning these people into caricatures for the purpose of bringing in donations.

Now, I know one rebuttal to that is, "Of course not. These nominees were reasonable, while Alito and Roberts aren't." If you actually believe that, there's not much to say that will convince you otherwise. I would just ask you to keep in mind that these liberal groups fired off their fundraising rants even before knowing who would be nominated. That they attacked Kennedy and Souter just as vociferously as they did Roberts or Alito.

Dave:I don't know - if the Republicans were still a minority in the Senate (as they were when Bork was borked) you would likely have seen a different nomination.

Would you have? The religious right was opposed to any stealth nominee -- "No more Souters" has been the cry for a long time now -- and Roberts and Alito really are well within the conservative mainstream.

You might have seen different nominees at the Circuit Court level -- no Janice Rogers Browns, for instance -- but not for the Supreme Court.

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