Supreme Court Pick Presenting Test for Leading GOP Moderate

By E.J. Kessler, With Reporting by Anthony Weiss

Published November 04, 2005, issue of November 04, 2005.

The confirmation battle over President Bush’s conservative Supreme Court nominee, Judge Samuel Alito, is likely to pose a daunting political test for the GOP chairman of the Senate Judiciary Committee, Arlen Specter.

Bush chose Alito, 55, a federal judge on the Philadelphia-based Third Circuit Court of Appeals, to succeed retiring Justice Sandra Day O’Connor, following the debacle of his withdrawn nomination of White House Counsel Harriet Miers. Alito, a graduate of Yale Law School and a darling of conservatives for his strict-constructionist opinions, is most famous for his dissent in Planned Parenthood v. Casey, in which he defended a Pennsylvania statute, later declared unconstitutional, mandating spousal notification in cases of abortion. Alito also has staked out a conservative, restrictive position on the constitutional clause permitting Congress to regulate interstate commerce, having argued that it should not be used, for example, to regulate private possession of machine guns or to authorize such popular federal legislation as the Family and Medical Leave Act.

Such views will test Specter — the nation’s senior GOP Jewish lawmaker and the Republican Party’s most powerful moderate — on several fronts, observers said. He will have to steer the confirmation process in a way that does not ignite a Democratic filibuster and with it, the so-called nuclear option — the GOP threat to kill judicial filibuster — that some conservatives are itching to trigger, although moderates fear it will paralyze the Senate. He will do so while seeking to remain true to his moderate, pro-choice convictions in regard to a nominee whose court sits in Specter’s hometown and whom Specter, 75, knows personally.

“For Specter it’s a choice between his pro-choice principles and his chairmanship,” said Marshall Wittman, a former aide to Senator John McCain who is now a senior fellow at the centrist Democratic Leadership Council. “My suspicion is he’ll choose the latter over the former. There’s an irony here. Specter has tried to differentiate himself on pro-choice, but at the end of the day, he may have shepherded through the majority that overturns Roe [v. Wade].”

University of North Carolina law professor Michael Gerhardt described Specter as “conflicted.”

Gerhardt said the situation means “that Specter will not move fast” — contrary to the apparent wishes of Bush — and that “he will press Alito hard on the right to privacy and congressional lawmaking authority.” Specter, Gerhardt added, is also likely to take positions on the Pledge of Allegiance and on school prayer “that will not endear him to the White House or Alito’s supporters.”

Specter will be doing so in the face of Democratic attempts to paint the Alito nomination as a Republican sop to the far right in advance of the 2008 GOP presidential primaries.

“The Miers-Alito debacle makes clear that the political organizing principle in the GOP has shifted from supporting their sitting Republican president to the 2008 presidential campaign,” said Democratic strategist Chris Lehane, summing up the views of many in his party. “The fact that the presidential aspirants parroted the evangelical right’s position tells you that going into 2008, the race for the nomination will be to see which candidate can sprint to the far right fast enough.”

Specter has poor relations with Christian conservatives. He frequently criticized their influence on the Republican Party during his quixotic 1996 bid for the GOP presidential nomination. In turn, after Bush’s re-election in 2004, religious conservatives tried to derail Specter’s accession to the Judiciary Committee chairmanship over remarks Specter made seeming to dismiss the chances of judicial nominees who would not uphold Roe v. Wade.

In a successful bid to hang on to his Judiciary chairmanship, Specter pledged to get every Bush judicial pick an up or down vote. Specter, however, has shaken his conservative and White House leash in recent weeks, displaying his independent streak.

During Miers’s failed Supreme Court bid, Specter threatened to subpoena a number of evangelical Christian conservative leaders, including Focus on the Family’s James Dobson and the Family Research Council’s Tony Perkins. Both Dobson and Perkins said they had gotten assurances from presidential adviser Karl Rove on Miers’s anti-abortion bona fides. Specter was annoyed that the men were claiming to have information that had not been supplied to senators. He also derided Miers’s credentials, calling her response to one Senate questionnaire “insulting” and saying that she needed “a crash course in constitutional law.”

In the case of Miers, Specter managed to establish his independence without paying a political price, since several of his more conservative colleagues, including Senator Sam Brownback, went even further in raising doubts about Miers.

“Specter has played his cards very smart since the unfortunate effusion that almost cost him his chairmanship,” National Journal legal analyst Stuart Taylor said in an e-mail, referring to the senator’s post-election remarks about Roe.

“In the first place, he did not commit to the nuclear option or anything else that he would not (I’d guess) have done anyway,” Taylor said. “He agreed to move nominees expeditiously through the Judiciary Committee, which one would expect any chairman of the same party as the president to do in any event, and which I think Specter would have done in any event.”

Specter has established a good rapport with the ranking Democrat on his committee, Senator Patrick Leahy of Vermont, and ran a very fair hearing on John Roberts, Taylor noted, “which gives him considerable credibility with the middle and left of the electorate.”

“If the conservatives were smart, they would realize that running a fair hearing is in their interests,” Taylor said. “If it looked like they have rigged the process to railroad through a questionable nominee, it will cost them more than it will gain them in public opinion.”

Specter himself, speaking to reporters Monday, sounded hopeful about Alito’s abortion jurisprudence. In a discussion of Roe, after meeting with Bush’s new nominee, Specter said, “Judge Alito did not endorse super precedents or super-duper precedents, but did say that he viewed it as a sliding scale, and that the longer a decision was in effect and the more times that it had been reaffirmed by different courts, different justices appointed by different presidents, it had extra precedential value.”

As conservatives hailed the Alito nomination, the White House sought to sway the Jewish community to support the pick. The president’s liaison to religious groups, Tim Goeglein, reached out to politically conservative and Orthodox elements of the Jewish community, participating in a conference call with activists Monday afternoon in which he stressed Alito’s qualifications. Others were making arguments about Alito’s expansive and extensive opinions on religious liberties.

In Fraternal Order of Police v. City of Newark, Alito held that a police department could not ban Muslim officers from wearing beards for religious reasons when beards were permitted for other reasons. In Blackhawk v. Pennsylvania, Alito upheld an injunction forbidding state officials from infringing on a Native American’s religious rights, citing a case called Tenafly Eruv Association v. Borough of Tenafly. The case held that a New Jersey town was discriminating against Orthodox Jews by denying them permission to construct an eruv, a boundary consisting mostly of pre-existing poles and wires that allows Sabbath observers to carry objects and wheel baby carriages outdoors on Saturdays.

“His protection of religious free exercise is a better record than anyone we’ve seen till now,” said Marc Stern, assistant executive director of the American Jewish Congress.

Nathan Diament, the Washington representative of the Orthodox Union, published an op-ed Tuesday in The New York Sun, arguing that “those who care about religious liberty” should “pray” that Alito gets the seat.

Among Jewish communal organizations, however, opinions of Alito appeared to be mixed. The organizations for the most part do not weigh in on judicial nominations. (One exception is the National Council of Jewish Women, which is opposing Alito on pro-choice grounds.)

Officials at several groups said they were preparing suggested questions for senators highlighting their concerns that Alito had taken overly restrictive positions in cases relating to civil rights, protection of immigrants and other federal matters. One communal official stated the main concern: “Do his narrow readings make it difficult for Congress to promote the public good?”

A native of Trenton, N.J., Alito is by most accounts a modest, decent and brainy fellow who has good relations with liberals and individuals in the Jewish community. Judge Edward Becker, a Democrat who serves with Alito on the Third Circuit, called him “an excellent choice” and “a mensch.” Burton Rose, a criminal defense appellate attorney who has argued in Alito’s court, said the nominee “is not the kind of conservative judge I was afraid George Bush would select.”

“He’s not a rigid person who can’t consider the pros and cons of the issue,” Rose said. He pointed to Alito’s April 14 ruling in the case of Bronshtein v. Horn — in which Alito vacated a death sentence and ordered a re-sentencing hearing for a Russian Jewish mobster convicted of murder — saying it would give pause to death-penalty advocates.

The National Jewish Democratic Council called the nomination “the latest chapter in the deepening commitment by George W. Bush and today’s GOP to appease the far right.”



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