WITH SAMUEL ALITO ABOUT to be confirmed, it's time to take stock of this particular episode in the making of a justice, the nation's 110th. Bear in mind that Alito was not President Bush's first choice to succeed Sandra Day O'Connor. The estimable John Roberts was, but when Chief Justice William Rehnquist died, Bush decided to redesignate Roberts for the center seat. That meant finding another nominee for O'Connor's seat.
As it happened, Bush surprised the world by naming White House Counsel Harriet Miers. The Miers nomination proved a major blunder. Bush had opted for a person he knew well who (obviously) was also a female (he decided to make that a job requirement) and who, lacking a paper trail, seemed to White House aides more "confirmable" (recall that Senate Minority Leader Harry Reid early on praised the choice). Yet it quickly became obvious that Miers's qualifications were thin--she had little experience in constitutional law--and there was reasonable doubt that her understanding of judicial conservatism went much beyond the president's own bromides on the subject. Her nomination began taking on water and was about to sink when Miers wisely asked out, thus giving the president another chance to choose O'Connor's successor. Without delay, Bush selected Alito, a federal judge of 15 years experience, whose qualifications no one doubted, whose judicial philosophy is manifestly that of a conservative, a lawyer who has actually stated that the Constitution does not encompass a right to abortion. As the replacement for O'Connor, Alito was surely a trade-up, so to speak, a net plus for judicial conservatism.
While the president erred with the Miers nomination, he deserves credit for getting back on track and choosing in Alito a jurist of the kind he long has promised. Defenders of the Miers nomination--very few in the end--were wrong to say that its withdrawal would weaken the president politically, especially with respect to judicial nominations. They were wrong to warn that someone of Alito's stature and judicial philosophy might not be confirmed, since Senate Democrats would be especially pumped to oppose such a nomination, seeing it as an act of capitulation to the conservatives who had so strongly objected to Miers.
In the end, a big lesson from the search for O'Connor's successor--a lesson of both the Roberts and Alito nominations--is that quality matters. Democrats were unable to convince anyone but themselves that the nation must maintain the Court's "balance" by having someone like O'Connor succeed O'Connor (assuming, that is, such a person could ever be found, her method of judging being entirely unpredictable). In Roberts and then in Alito, the country saw smart, experienced lawyers who could handle anything thrown at them--without losing their cool.
Another lesson is that quality nominees can make a winning case for judicial conservatism. In making clear the fundamental distinction between law and politics that lies at the heart of their judicial philosophy, both Roberts and Alito articulated a theme that Senate Democrats proved unable to counter effectively. And meanwhile, their cries of wolf, subjected to the immediate, withering scrutiny of informed commentators, didn't resonate. Polls taken after the hearings found that public support for Alito had actually increased.
There is another lesson from the two nominations, which is that Democrats have succeeded in making Supreme Court nominations a matter of partisan politics. In another era, John Roberts, approved by a vote of 78 to 22, would have been confirmed with only a handful nays. So would have Sam Alito, against whom, as we go to press, as many as 40 votes will be cast, all by Democrats.
As much as we would like to see the country return to a time when senators tended to defer to the judicial nominations of the president, opposing only in truly exceptional cases, there is no going back to that era, not so long as Democrats insist on measuring nominations ideologically. For this reason, senatorial elections will remain highly relevant to the making of judges and justices. After all, who can doubt where the Alito nomination would be today if Democrats had been in control of the Senate? It is striking that the Alito nomination is already an issue in some 2006 races, used by Republican incumbents against Democratic challengers (in Pennsylvania, Missouri, and Arizona) and by Republican candidates hoping to win seats in red states (West Virginia and Florida).
The Democrats have yet to find a red state where they can make the case for what might be called "living-Constitution" jurists. But there can be no doubt that the debate over judicial selection will intensify both this year and again in 2008. What's unknown, of course, is whether Bush's last years in office will offer him another opportunity to pick a justice. If so, it's not too early to say that he should select another in the mold of Roberts and Alito.
-Terry Eastland, for the Editors