WASHINGTON — Justice Samuel Alito, the fifth Catholic on the Supreme Court, is expected to move the court in a more pro-life direction.
The U.S. Senate confirmed Alito to the Supreme Court Jan. 31, replacing Justice Sandra Day O’Connor, who will retire. The bipartisan 58-42 vote came in time for Alito to be sworn in before President Bush’s fifth State of the Union address that night.
In his confirmation hearings, Alito had been unabashed about the decisions he made during his 15 years on the appellate bench, including one in which he ruled in favor of a spousal consent law on abortion.
When questioned by Democratic senators, Alito refused even to concede that the Supreme Court’s controversial Roe v. Wade abortion decision was “settled law” — as had Bush’s first nominee, Chief Justice John Roberts — nor did he disavow his earlier opinion, stated in a 1985 memo, that the Constitution does not guarantee a right to abortion.
The 55-year-old Alito becomes Bush’s second successful Supreme Court appointment. Both have delighted pro-lifers, said Joe Cella, president of the Catholic legal group Fidelis. “We now have two young conservative Supreme Court justices who have a great respect for the rule of law,” said Cella. Roberts is 51. “This will likely shape the outcome of important cases for many years to come.”
Even more significant than Alito’s confirmation vote was the overwhelming 72-25 vote by which senators had rejected a filibuster against Alito Jan. 30. The lopsided “cloture” vote, in which 60 or more senators can end a filibuster and force a final vote, came after Sen. John Kerry, D-Mass., convinced like-minded members of his caucus to attempt a filibuster.
“I think they really had no choice, because if you look at the finance reports of the Democratic Party, they are hurting,” said Cella. He said they will do what their “bosses tell them to.”
Campaign finance reports revealed recently that the Democratic National Committee has lost a net $100,000 so far this cycle, and trails its Republican counterpart in cash by a margin greater than five-to-one. The 72-25 vote Jan. 30 was a watershed moment. As recently as 2004, Senate votes on judicial filibusters were almost all near-party-line affairs, with vote totals such as 54-44.
Yet although Democrats enjoyed great success with those filibusters against nominees, they hurt themselves politically. The issue of judicial appointments played a significant part in Democrats’ net loss of six Senate seats over two elections. This was highlighted particularly by the defeat of Senate Minority Leader Tom Daschle in South Dakota in 2004 after he had led his caucus through the filibuster strategy.
“Beating Daschle was huge,” said Sean Rushton, executive director of the pro-Alito Committee for Justice. “It underscored the fact that this issue matters to voters.” Indeed, South Dakota’s other Democratic senator, Tim Johnson, was one of four Democrats to vote for Alito.
Every single Democratic senator who is considering running for president in 2008 — including Evan Bayh of Indiana, Joe Biden of Delaware, Hillary Clinton of New York and Russ Feingold of Wisconsin — voted in favor of the filibuster.
Because it failed so badly, Kerry’s filibuster attempt may now make it very difficult to return to filibustering nominees on future nominations. It comes as a repudiation of Democrats’ earlier strategy of using parliamentary tactics to block nominees in committee and on the Senate floor, despite their having majority support in the Senate.
A spokeswoman for Kerry referred the Register to Kerry’s written statements after the cloture vote: “It’s hard to lose — but it’s important to fight for what we believe in,” Kerry wrote in an e-mail to supporters. Kerry put the best face on the result of the cloture vote. He noted that by casting 25 votes against cloture, Democrats provided “more votes to filibuster the Alito nomination than there were votes against Justice Roberts’ nomination itself just a few months ago.”
People for the American Way, an advocacy group that had vigorously opposed Alito’s confirmation, likewise tried to put a good face on what was for them a crushing defeat. “Today’s 58-42 vote to confirm Samuel Alito represents the second highest number of votes against a confirmed Supreme Court nominee in the nation’s history,” read a statement on the group’s website. The group’s spokesman, Elliot Mincberg, failed to respond to the Register’s phone inquiries by press time.
Immediately after the confirmation vote, Sen. Sam Brownback, R-Kan., told a group of reporters that as Alito replaces O’Connor, he will bring more consistency to the court on issues of religious freedom.
“I think we’re going to start seeing some of these rules have more clarity and make more sense,” said Brownback, “to the point where you don’t have the situation where you can display the Ten Commandments in Texas but you can’t in Kentucky.”
Brownback was referring to two recent cases involving the Ten Commandments in which the rulings were basically at odds with one another.
“I hope we’ll start moving back to a point where we can celebrate faith in the public square,” said Brownback.
Alito’s confirmation, along with that of Chief Justice Roberts, also gives the Supreme Court the first Catholic majority in American history. Although neither Alito nor Roberts has indicated how he will rule on the abortion issue, it is widely believed that both would vote to overturn Roe v. Wade, meaning that the replacement of one more opposing judge could result in that case’s reversal.
Catholics have suddenly achieved an unprecedented level of ascendancy in Washington. Two days after Alito’s confirmation, Rep. John Boehner, R-Ohio, was elected House Majority Leader in an upset over acting Majority Leader Roy Blunt, R-Mo. Boehner is believed to be the highest-ranking Catholic Republican lawmaker in American history.
As he took over his new position, Alito quickly surprised observers with his first ruling, the very night he was confirmed. The new justice rejected an attempt by the state of Missouri to execute a condemned prisoner immediately.
Alito voted with the majority in a 6-3 decision to leave in place a stay of execution, pending further judicial proceedings.
Alito joined Justices Stephen Breyer, David Souter, John Paul Stevens, Ruth Bader Ginsberg and Anthony Kennedy.
Said Cella: “I think it’s consistent with what we’ve said all along, that he’s an independent jurist, and I wouldn’t read too much into it.”
In his 1995 encyclical Evangelium Vitae (The Gospel of Life) Pope John Paul II wrote that cases in which the death penalty should be applied today “are very rare, if not practically nonexistent” (No. 56).
This teaching was incorporated into the Catechism of the Catholic Church at Cardinal Joseph Ratzinger’s direction shortly after the publication of the encyclical.
writes from Washington, D.C.