Battle Lines Over Alito Are Drawn

Oct. 31, 2005 — -- Despite Samuel Alito's strong conservative record -- and judicial views on abortion -- some experts say it is unlikely Senate Democrats will successfully filibuster his nomination to the Supreme Court.

President Bush nominated Alito, a federal judge on the 3rd U.S. Circuit Court of Appeals, to succeed Sandra Day O'Connor, a key swing vote on the court who announced her retirement last summer. Unlike Harriet Miers, who bowed out last week after scathing criticism from both sides of the aisle, Alito is an experienced judge with a strong conservative record.

"Because it's O'Connor's seat, and because of the changed political dynamics over the last 60 days, the Democrats will be much more oppositional than they were with Roberts," said Brad Berenson, who was associate White House counsel during President Bush's first term and is now an ABC News consultant. "But Alito is no ideologue, and his record will be hard to caricature. I think at the end of the day it'll be almost impossible to filibuster him, and certainly not successfully."

"His career focus has certainly been on the appellate side, but he also served as U.S. Attorney, so he's seen the law at ground level," Berenson continued. "He has a longer record than Judge [Supreme Court Chief Justice] Roberts, so a few more targets to shoot at, but when you factor in Judge Roberts' Department of Justice and White House memos, it's not clear that there's anything about Judge Alito that will be more obviously objectionable to the left than was in Judge Roberts's record. He has more criminal law experience and expertise than Judge Roberts did."

Alito has been nicknamed "Scalito" by some lawyers because of similarities between his judicial philosophy and writings and Justice Antonin Scalia. Conservatives have lauded Alito's record as evidence of a judicial philosophy of strict interpretation of the Constitution and argue he has been a powerful voice for First Amendment guarantees of free speech and the free exercise of religion.

Liberal groups, however, have focused Alito's similarities to Scalia and are arguing that his nomination — especially his record on civil rights and reproductive rights -- raises troubling concerns. Alito has been a frequent dissenter on the 3rd Circuit, known as one of the most liberal federal appellate benches in the nation. In 1992, Alito was the lone dissenter in Planned Parenthood v. Casey, a case where the court struck down a provision requiring women seeking abortions to notify their spouses. The case ultimately ended up at the Supreme Court where the justices, in a 6-3 decision struck down the spousal notification provision.

"When people -- not just women but people across the country -- find out about this decision and others, they're not going to want Samuel Alito on the court," said Ralph Neas, president of People for the American Way. "This is the most important and most controversial Supreme Court nomination battle since Robert Bork and Clarence Thomas."

The American Civil Liberties Union urged the Senate to examine Alito's civil liberties record, especially since he would replace O'Connor.

"Justice O'Connor has provided more than a swing vote," said Steven R. Shapiro, the ACLU's National Legal Director. "She has been a moderating voice on critical civil liberties issues ranging from race to religion to reproductive freedom. Judge Alito's position on each of these issues has been more hostile to civil liberties than positions taken by Justice O'Connor. His nomination therefore calls into question the court's delicate balance that Justice O'Connor has helped to shape and preserve."

Still, in 2000 Alito upheld a ruling in that found a New Jersey law banning partial-birth abortions unconstitutional. In his concurring opinion, he said that "any limits on abortion must have an exception for the preservation of the health of the mother."

That, some experts say, discredits concerns that Alito is an ideologue and not an independent-thinking judge.

"And on abortion -- which is where the opponents of the nomination would like to concentrate fire -- his pattern of decisions isn't reflective of a results-oriented, activist jurisprudence," Berenson said. "He dissented in Casey and would have held spousal notification constitutional, but he also struck down a ban on partial birth abortion and struck down Pennsylvania limitations on Medicaid funding for abortion."

Alito has received endorsements from Republicans and conservatives who opposed Miers. Conservative activist Gary Bauer said, "At least now the president is having a battle with his political opponents and not with his friends." Some analysts believe the questions posed by pro-choice Republicans during his confirmation hearing will be key to his nomination.

"Pay special attention to pro-choice Republicans like Olympia Snowe of Maine, Susan Collins of Maine, Arlen Specter, the [Senate] Judiciary Committee chairman," said George Stephanopoulos, anchor of ABC News' "This Week."

Specter said that Alito's views on abortion would be "among one of the first items Judge Alito and I will discuss." However, he added that he would not directly ask Alito whether he would overturn Roe vs. Wade.

"There is a lot more to the issue of a woman's right to choose than how you feel about it personally," Specter said.

Still, it looks like Alito's nomination has drawn the battle lines over Roe. Operation Rescue said it supports the choice of Alito.

"We believe that this nomination may fulfill Bush's promise to appoint justices in the mold of Scalia and Thomas," said Operation Rescue President Troy Newman. "Alito's judicial philosophy reflects the views of the majority of Americans who are increasingly outraged by the current liberal activist court. We are trusting that we are now on the fast track to derailing Roe v. Wade as the law of the land."

However, abortion-rights activists say they are ready to challenge Alito's nomination. Planned Parenthood activists and supporters today planned a protest rally outside the Supreme Court.

And that may be only the beginning of the battle over Alito.

"Now, the gauntlet has been, I think, thrown down," said Kate Michelman, former president of NARAL-Pro-Choice American.

ABC News Radio contributed to this report.