George W. Bush has nominated Judge Samuel Alito of the U.S. Court of Appeals for the Third Circuit to the Supreme Court. Judge Alito has a strong record academically and in government. He was U.S. attorney for New Jersey, a high-pressure job in a state where corruption ishow shall we say this?not unknown. To be confirmed for that position, Alito would have to have been approved by New Jersey's two Democratic senators at the time, Bill Bradley and Frank Lautenberg, the latter of whom is again serving in the Senate. From my knowledge of those two men, I believe they would not have approved Alito unless they were convinced that he was (a) highly competent, (b) completely honest, and (c) not likely to use his power as a prosecutor for political purposes. They certainly understood the importance of the job and would not, I think, have given their approval lightly. Here's what Lautenberg and Bradley said about Alito's appointment as U.S. attorney.
Conservatives who opposed the nomination of Harriet Miers were, as everyone expected, delighted by the choice of Alito. So was Hugh Hewitt, the conservative radio talk-show host, blogger, and lawyer, who steadfastly supported Miers. I think it's safe to predict that all Republican senators will support Alito, with the possible exception of Olympia Snowe. I don't think Lincoln Chafee will oppose him, for reasons that I'll get to later in the post.
As for the Democrats, they're in a mood to fight and, if possible, to filibuster. Charles Schumer, always fast to the microphone, issued the following statement at 7:44 a.m., before the president spoke: "It is sad that the president felt he had to pick a nominee likely to divide America instead of choosing a nominee in the mold of Sandra Day O'Connor, who would unify us. This controversial nominee, who would make the court less diverse and far more conservative, will get very careful scrutiny from the Senate and from the American people." Nothing here on Alito's sterling credentials, even though Schumer was careful to show respect for John G. Roberts's sterling credentials when his nomination was announced.
On this appointment the Democrats are caught between two constituencies. On one side is the feminist left. They have to oppose Alito if they want the people on their direct-mail lists ever to send in money again. The reason is that Alito wrote a dissent in 1991 upholding the Pennsylvania abortion law challenged in Planned Parenthood v. Casey. The law in question required the woman seeking an abortion to give notification to her husband, with some exceptions. "(1) [The husband] is not the father of the child, (2) he cannot be found after diligent effort, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) [the woman seeking an abortion] has reason to believe that notification is likely to result in the infliction of bodily injury upon her." Judge Alito followed the criteria set by O'Connorwhom, if he is confirmed, he will replacewhich he said were the decisive opinions on the Supreme Court. He wrote, "Although the plaintiffs and supporting amici argue that Section 3209 will do little if any good and will produce appreciable adverse effects, the Pennsylvania legislature presumably decided that the law on balance would be beneficial. We have no authority to overrule that legislative judgment even if we deem it 'unwise' or worse. U.S. Railroad Retirement Board v. Fritz, 449 U.S. at 175, 101 S.Ct. at 459. 'We should not forget that "legislatures are ultimate guardians of the liberty and welfare of the people in quite as great a degree as the courts."'Akron v. Akron Center for Reproductive Health, 462 U.S. at 465, 103 S.Ct. at 2511 (O'Connor, J., dissenting), quoting Missouri, K. & T.R. Co. v. May, 194 U.S. 267, 270, 24 S.Ct. 638, 639, 48 L.Ed. 971 (1904)."
The Casey in the case, by the way, was the late Pennsylvania governor Bob Casey, whose son, Bob Casey Jr., will be the Democratic candidate for Senate in Pennsylvania in 2006 and who is currently leading Sen. Rick Santorum in the polls. Presumably, Casey Jr. would not urge a vote against Alito for his opinion upholding a law strongly backed by Casey's father. Still, I expect that left liberal Democrats like Schumer, Edward Kennedy, and Richard Durbin are itching to oppose this nomination and will try to filibuster. They believe there's a chance a filibuster can work.
But if they filibuster, they risk alienating another constituency, Italian-Americans. To understand the risk, consider the number of votes cast against the confirmation of Antonin Scalia in 1986. That number was zero. Democrats knew Scalia was a judicial conservativehe had a paper trail as an academicbut they also knew that Italian-Americans very much wanted to see a fellow Italian-American on the Supreme Court. For many years I have attended events sponsored by the National Italian American Foundation, an organization established in the 1970s in large part to dispel the Mafia stereotype. NIAF has been proud to seat the director of the FBI at the head table as its annual dinner. It was proud that in 1984 the four Democratic and Republican nominees for president and vice president (including Geraldine Ferraro, remember) attended its dinnerthe only time in American history, I believe, that four nominees attended a single event.
The late Peter Rodino, longtime chairman of the House Judiciary Committee and a liberal Democrat on most issues, once told me with tears in his eyes that one of his greatest regrets in life is that his father did not live long enough to see the first Italian-American on the United States Supreme Court. In 1987 I spent a day in Wilmington, Del., with Joseph Biden, who was running for president. He took me around the town, introduced me to his mother and father, and took me to lunch at a little restaurant in Wilmington's Little Italy. He knew everyone there very well and was very warmly received. The thought later occurred to me: There was no way this guy was ever going to vote against the first Italian-American on the Supreme Court. And no way any senators from Pennsylvania, New Jersey, New York, Connecticut, Rhode Island, and Massachusetts were, either. They all had their friends in their state's Little Italy, and they weren't going to disappoint them. Scalia seems aware of this. He's reportedly willing to speak to any Italian-American organization that invites him.
Italian-Americans are less defensive today and probably less ethnically conscious. The political risks of opposing an Italian-American are therefore probably less than in 1983. But they're not zero. I wonder whether Tom Carper of Delaware (where 7 percent of the population in the 2000 census said they were of Italian ancestry), Frank Lautenberg of New Jersey (14 percent), Hillary Rodham Clinton of New York (11 percent), Christopher Dodd and Joe Lieberman of Connecticut (14 percent), and Jack Reed of Rhode Island (14 percent) really want to go to the length of supporting a filibuster against an Italian-American judge with sterling credentials and majority support in the Senate. I'm pretty sure that Lincoln Chafee, facing a conservative opponent in the Republican primary in Rhode Island, the state with the nation's highest percentage of Italian-Americans, doesn't want to oppose Alito. If I were giving him political advice, I would certainly advise him not to do so. As much as one quarter of Republican primary voters there will have Italian names or Italian ancestors. And what about Patrick Leahy of Vermont, who is of Italian descent (on his mother's side) as well? He's often been given a place of honor at NIAF dinners. I'm not sure he'd want to attend if he opposed Alito. The audience there is, to judge from responses at the dinners I've attended, about half Republican and half Democratic. But I'll bet they'll be close to 100 percent for Alito.
Note that George W. Bush was careful to point out that Alito's father was an Italian immigrant. I don't think the Democrats failed to notice that.
The hearings will probably make some difference. Alito's supporters argue that he is a very careful and polite judge, not given to sarcastic and humorous remarks as Justice Scalia is. He certainly seems to have a solid grounding in the law. He may or may not have the charm Roberts showed, but he seems likely to make a very positive impression. My guess is that the left Democrats are not going to be able to get the 41 votes they need for a filibuster. Sens. Ben Nelson of Nebraska and Kent Conrad of North Dakota, both up for re-election next year in solidly Republican states, voted for Roberts. So did Byron Dorgan of North Dakota and Max Baucus of Montana. They're not likely filibusterers. Bill Nelson of Florida, up for re-election next year, would take some political risks by opposing him. That's fiveenough to defeat a filibuster right there. When you add to that the senators listed above from states with large numbers of Italian-Americans, many of whom in my judgment will be lukewarm at best about joining a filibuster, you can see why I think Schumer and company will not get up the head of steam they need.
Footnote: Here's the National Italian American Foundation's statement on the nomination of Judge Alito. It comes from A. Kenneth Ciongoli, chairman of the foundation.
The National Italian American Foundation (NIAF) applauds President George W. Bush on his nomination of Samuel A. Alito Jr., a judge on the U.S. Court of Appeals for the Third Circuit, to the position of associate justice of the United States Supreme Court.Judge Alito, whose father immigrated to the United States from Italy, is highly respected in the judicial community for his constitutional knowledge and his impeccable character.President Bush has chosen an individual whose intellect and qualifications are above reproach. We are proud and fortunate that he shares our Italian heritage. Washington, D.C. Oct. 31, 2005.