Abortion: The Issue That Could Spark An Alito Showdown
By nominating Judge Samuel Alito after the Harriet Miers debacle, President Bush has deprived liberals of two lines of attack. First, cronyism. Not an issue here. Though his father put Alito on the bench 15 years ago, Bush lacks the long and intimate professional relationship he shared with Miers.
Second, Alito probably comes the closest to being another John Roberts when it comes to credentials and compared to other names on the president's short list of candidates. Alito has real-world experience in the trenches as a former federal prosecutor, as well as a substantive background in constitutional law from his years as a judge and as an assistant to the solicitor general. This, along with his fabled judicial temperament as courteous and civil to colleagues and lawyers, makes him an appealing nominee to the Supreme Court.
Showdown Likely Over Roe v. Wade
The main line of attack by Democratic senators will be Alito's solid law-and-order conservatism, with an emphasis on his position on abortion. Democrats will be assisted by a significant paper trail -- which was lacking for Roberts -- and will come out guns-a-blazing, with much at stake regarding the pivotal Sandra Day O'Connor seat. The retiring justice provided the deciding vote on cases involving important social issues including abortion, affirmative action and separation of church and state.
Alito at times has been at odds with O'Connor, who has provided the deciding vote to limit the government's power to restrict abortion. In Planned Parenthood v. Casey, for example, Alito, as 3rd U.S. Circuit Court of Appeals judge, was the lone dissenter who wanted to uphold a Pennsylvania law requiring women to notify their husbands before obtaining an abortion. The Supreme Court, in a decision authored by O'Connor, nixed the spousal notification requirement.
Conservatives will argue, of course, that this is not an indicator of how Alito would ultimately vote once on the high court. Supporters will assert that Alito, like John Roberts, might very well follow and respect precedent, including the controversial Roe v. Wade decision that gave women the constitutional right to abortion. Fans of Alito also point to his decision in 2000 to declare illegal a New Jersey ban on partial-birth abortions.
If confirmed, Alito will have an immediate impact in the abortion area. On Nov. 30, the court hears a case involving New Hampshire's parental notification law. And up for consideration by the Supreme Court is a case involving a federal law that bans partial-birth abortions, which to date has been declared unconstitutional by several lower federal courts.
In a confirmation hearing that may turn out to be as contentious as the hearings for Robert Bork and Clarence Thomas, opponents of Alito will leave no stone unturned. Take this tidbit learned from Alito's 90-year-old mother today: Rose Alito says her son is against abortion.
I predict a bloody hearing that will culminate in a Democratic filibuster and Republicans pulling the nuclear trigger.
