The Nine [173]
So there was no mystery about Alito’s personal beliefs. Indeed, the letter showed that his judicial philosophy, at least in 1985, was well to the right of where, say, even Rehnquist was in 2005. Alito had also written, “In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment.” The major Warren Court decisions in these subjects were those creating the Miranda warning, banning government-sponsored prayer in schools, and calling for one person, one vote in legislative districting. Even conservatives like Rehnquist came to terms with these rulings, but such was Alito’s passion for the conservative cause in the Reagan years that he apparently found them too liberal. As a lower court judge for the past fifteen years, Alito had no right to overturn these precedents, but he gave every indication that he would if he could.
Despite Alito’s potentially extreme views, simple arithmetic made his confirmation nearly a foregone conclusion. As soon as he was nominated, it became clear that he would survive the most important test for any Bush nominee to the Court—what might be called the Republican primary, that is, the approval of the conservative base.
The full Senate, by comparison, would be easy for Alito. There were fifty-five Republicans, and all but a handful—Lincoln Chafee of Rhode Island, and Susan Collins and Olympia Snowe of Maine—would be certain to vote for a true conservative like him. (A moderate in other circumstances, Arlen Specter could not oppose a Bush nominee to the Supreme Court and keep his beloved chairmanship of the Judiciary Committee.) From the moment of Alito’s nomination, the only hope for Democrats to stop his confirmation would be to establish and hold a filibuster of forty or more senators.
No Supreme Court nominee in history who had the support of a majority of senators had ever been stopped by a filibuster. (In 1968, there was a filibuster against Lyndon Johnson’s nomination of Abe Fortas to be chief justice, but it was not clear that Fortas had the votes to be confirmed.) So a Democratic filibuster against Alito was unlikely, and if one had been attempted, it might have led to the elimination of the tactic for good. In advance of the debate, Bill Frist, the majority leader, was clearly itching for a fight so that he could invoke the “nuclear option” and do away with filibusters on judicial nominees once and for all. Such a move would have ingratiated Frist with the Republican base, whose support the Tennessee senator was then courting for a possible presidential run in 2008. (He later declined to run.) In short, the odds were always stacked against a Democratic attempt to stop Alito’s confirmation; there were simply too many votes on the other side.
Still, the reaction to his nomination among Democrats showed just how much times had changed since the Bork hearings. It was only a year since Specter thought the conventional wisdom was that nobody could be confirmed unless he or she supported Roe v. Wade. Samuel Alito and the Republican Senate were about to provide a specific refutation.
The Democratic Party had a base, too, and the pro–abortion rights position was just as important to these activists as the opposing view was to the conservatives. When it came to judicial nominations, the liberal position was embodied by People for the American Way, a well-funded, politically savvy advocacy group founded by Norman Lear, the television producer, and led by Ralph G. Neas, an architect of Bork’s defeat in 1987. PFAW had a membership list of 750,000 activists, and as soon as Alito was nominated, Neas set out to mobilize them against a man he called the embodiment of “the radical right legal movement.