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Editorial: Justice Alito / The Supreme Court enters a troubling era
Wednesday, February 01, 2006

In time for President Bush's State of the Union address, the Senate yesterday confirmed Samuel A. Alito Jr. as an associate justice of the U.S. Supreme Court. After a late attempt at a filibuster was easily defeated Monday, Judge (now Justice) Alito was confirmed 58-42, the most partisan victory in modern times.

In both respects, the way this played out provided an appropriate political ending to a disheartening process. After all, the context of this nomination was entirely political.

Justice Alito was the thoroughly conservative judge served up to appease and delight Mr. Bush's right-wing base, who were united in their displeasure with the previous nominee, White House counsel Harriet Miers, whose main offense was not being demonstrably conservative enough.

President Bush delivered what he promised to deliver, leaving Democrats caught in a dilemma. Judge Alito said all the right things at his confirmation hearings, which is to say that he did not reveal much at all. Moreover, he has the experience and credentials for the job and no one doubts his honesty.

Both his supporters and detractors know what sort of justice he will make. But does strong intuition based on a long judicial record -- plus a nod and wink from the White House and its fans -- justify a filibuster? Given the likely political cost, probably not, especially when simple arithmetic argued against it.

The opposition ended up being symbolic and Mr. Bush got his up-or-down vote. That has its own political consequences. Republicans, while they bristled at the tough questions directed at the nominee, can't say the Democrats denied the mandate that the last election gave Mr. Bush.

Only four Democrats voted for the nominee, among them, to his shame, Sen. Robert C. Byrd of West Virginia. One Republican, to his credit, voted no (Sen. Lincoln Chafee of Rhode Island). Regrettably, Pennsylvania Sens. Arlen Specter and Rick Santorum lined up with their colleagues; Sen. Santorum was a lost cause, but Sen. Specter, who provided a fair and steady hand as chairman of the Judiciary Committee, was a disappointment in naively putting aside his own concerns.

But the political stamp was undeniable. The margin of victory was closer for Justice Clarence Thomas in 1991 -- 52 to 48 -- but 11 Democrats voted yes on that occasion. This time the victory belonged entirely to Mr. Bush and the Republicans -- and that may yet bring a day of reckoning.

Perhaps America has become as rabidly right-wing as supporters of this nominee suppose. But if Justice Alito performs to universal expectations, a lot of things ordinary Americans take for granted may change.

Young women who never gave a thought to the availability of safe and legal abortions may find that, in concert with a new majority, Justice Alito has taken away a right -- either at one stroke or by a death from a thousand judicial cuts. Conservatives worried about the aggregation of government power may find that Justice Alito is no friend. And lowly petitioners seeking redress from some wrong perpetrated by a powerful entity may find no sympathy.

If all this comes to pass, this partisan vote will be a reminder of who was responsible.

First published on February 1, 2006 at 12:00 am