WASHINGTON — President Bush's choice of Judge Samuel Alito Jr. to replace Sandra Day O’Connor on the U.S. Supreme Court is historic in many ways.

If confirmed, Alito, who has served as a judge on the U.S. Court of Appeals for the Third Circuit in Philadelphia for 15 years, would be one of the most experienced new members of the Supreme Court in history. His nomination would also increase the number of Catholics on the high court to five, making it a mostly Catholic panel for the first time in history.

His nomination Oct. 31 came days after White House Counsel Harriet Miers withdrew her nomination to the same vacancy. That nomination earned the president a severe rebuke from his political base because Miers lacked judicial experience and a clear paper trail indicating her judicial philosophy.

Whereas the Miers nomination was calculated to avoid friction with Senate Democrats in the confirmation process, Bush's choice of Alito has reassured restive Republicans at a time when the president's administration and party are suffering from scandals and need support from their political base.

But a major political fight in the U.S. Senate awaits Alito that will center on the issue of abortion.

“President Bush has picked a nominee whom he hopes will stop the massive hemorrhaging of support on his right wing,” said Sen. Ted Kennedy, D-Mass., in a statement released moments after the nomination. “This is a nomination based on weakness, not on strength.”

Still, with Republicans holding a 55-seat majority in the Senate, Bush will probably prove strong enough to win confirmation for Alito.

“With Sam Alito, you've got 15 years on the bench and a long record, which I was hoping for,” said Sen. Sam Brownback, R-Kan., a staunch pro-lifer whose quiet opposition helped to kill Miers’ nomination.

Brownback, a member of the Senate Judiciary Committee, told the Register that he looked forward to confirmation hearings, to begin Jan. 9.

“I don't know that we'llget a discussion on” Roe v. Wade, he said, “but we will get a chance to talk about the Constitution, and whether it is to be strictly rendered, or whether it is a living, breathing document.”

Brownback, who had a long meeting scheduled with Alito for Nov. 10, said he wanted to learn more about the nominee. But he was already encouraged by what he had seen — as are most political conservatives in Washington.

There are no indications that Democrats will filibuster Alito's nomination, but if they do, Republicans are certain to resort to the so-called “nuclear option,” a parliamentary tactic by which they would prevent a filibuster. Alito could then be confirmed with as few as 50 votes.

Religious Freedom

A graduate of Princeton and of Yale Law School, Alito served as a U.S. Attorney and Deputy Assistant Attorney General in the Reagan Administration. A native of Trenton, N.J., he was appointed to the Third Circuit by President George H.W. Bush. Supporters note that Alito's years of litigation and judicial experience make him one of the most qualified nominees to the high court in U.S. history.

His confirmation would mean that four Catholics — including Chief Justice John Roberts and Justices Clarence Thomas and Antonin Scalia — would make up the court's entire conservative bloc.

“It's one sign that Catholics have come a long way — that religion doesn't seem to matter,” said Bill May, president of Catholics for the Common Good.

May, whose group promotes Catholic social teaching, praised Alito for his rulings on religious freedom. He cited a ruling in which Alito upheld the right of Sunni Muslim policemen in Newark, N.J., to grow out their beards and another in which he upheld the right of Jersey City, N.J., to display a Christmas-Hanukah exhibit on city property.

“He indicates that he has an understanding of the establishment clause that really is freedom for religious expression rather than freedom from religious expression,” said May.

Alito's long tenure on the bench has left quite a paper trail, but in many ways defies simple ideological labels. He has ruled in favor of the habeas corpus rights of criminals and rights for the handicapped and asylum seekers. In a 1996 case, he applied a recent Supreme Court precedent and argued that a Congressional ban on machine gun possession should be struck down.

But of greatest importance during confirmation hearings will be Alito's rulings on four cases involving abortion. The most famous was his opinion in the landmark 1991 case Planned Parenthood v. Casey. In his dissent, Alito voted to uphold a Pennsylvania law requiring women to notify their husbands before getting abortions, arguing that such a restriction is consistent with the precedent of Roe v. Wade. His opinion was rejected in a 5-4 Supreme Court decision, led by Justice O’Connor.

At first glance, Alito's rulings in the other abortion cases do not offer pro-lifers clear signs of hope because Alito simply followed pro-abortion precedents from the higher court. But Ed Whelan, a former clerk to Justice Antonin Scalia and president of the Ethics and Public Policy Center, said these cases should not worry opponents of abortion since they show that Alito was doing his job as a lower court judge properly.

“The settled understanding is that lower court judges, in living up to their oath, must accept Supreme Court rulings as binding,” said Whelan, who added that Alito would be in a position to reject bad precedents if he becomes a Supreme Court justice. “Justices take an oath to uphold the Constitution, not their predecessors’ mistaken interpretations of it,” Whelan said. “Everything in Alito's background, training and broader record persuades me that he deeply understands the proper role of a Supreme Court Justice.”

Question of Precedent

Not all pro-lifers agree.

Alito “just follows the abortion precedents without really expressing any hesitation about it,” said Richard Collier, a New Jersey attorney who argued and lost a partial-birth abortion case before Alito and two other judges in 2000. “No criticism, no effort to lay any intellectual foundation for overturning the precedents. He follows them instead of dissenting or at least remarking on how he's reluctantly constrained to follow them,” said Collier, president of the Legal Center for the Defense of Life.

May and Whelan disagreed with Collier's criticism.

“A good judge who takes his faith seriously will follow the law, his oath of office, which he takes before God,” said May. “Other pro-life judges have had to do the same thing because of the precedents set before the Supreme Court.”

“It's dangerous to endorse a notion of judging that pretends that the law is indeterminate and that judges have legitimate discretion to choose which way to go,” said Whelan. “The mess we're in results from judges indulging their own policy preferences.”

David Freddoso writes from Washington, D.C.