The nomination by President Bush of federal appeals judge Samuel Alito to the Supreme Court could have been worse. That said, it could have been better too. Clearly, the president erred in his prior nomination of his own lawyer, the untested, unknown, and -- it became painfully obvious -- unequipped Harriet Miers. Miers was excoriated on ideological grounds by the radical right and regarded as judicially infra dig by virtually everybody else. It seems at least plausible that in nominating Miers the president had hoped to circumvent the kind of partisan warfare that his currently dismal approval ratings (lingering below the 40 percent level) might leave him ill-prepared to withstand.
On the other hand, the case has been made that Miers was never anything more than a Trojan Horse candidate, destined ultimately to be withdrawn in favor of a bona fide right-winger. Enter Alito, according to this scenario.
That's a little bit too much of a conspiracy theory for us. It's much more likely that the president -- buffeted by the polls, by a general disaffection regarding Iraq, by the post-Katrina reaction, and by the fallout from Plamegate -- merely took another dive into the kind of cronyism typified by his ill-fated appointment of former FEMA head Michael "Heck of a job, Brownie" Brown.
Evidence for the latter theory stems from the fact that Alito enjoyed a close working relationship with current Homeland Security director Michael Chertoff, himself no candidate for the Nobel Prize as a result of his efforts during hurricane season.
Whatever the president's reasons, Alito is the nominee about whom a polarized U.S. Senate must exercise its historical advise-and-consent role. What is obvious right away is that this 15-year veteran of the federal judiciary is not just conservative but perhaps predisposed to disbelieve in what has come to be regarded as a constitutionally protected right to privacy. Memorably, he was the only dissenter in an 1991 appeals-court judgment that struck down a Pennsylvania law requiring wives to notify their husbands of their desire to have an abortion. Later, Sandra Day O'Connor cast the deciding vote against the law when a final appeal reached the Supreme Court.
As a judge, Alito has also ruled in favor of doctrinal religious displays at public institutions -- a decision symbolized by his approval of a diversified but sectarian holiday display at Jersey City's City Hall in 1999. Given current church-versus-state tensions, this issue too is a potential deal-breaker.
Most recently, evidence has turned up suggesting that Alito may be in for conflict-of-interest questioning concerning his recent acquisition of Exxon Mobil stock.
All of this is ample reason for the Senate to subject Alito to the most thoroughgoing examination. It may even be reason for that body's Democrats to avail themselves of the loophole in the recent bipartisan agreement which permits, in specific cases, the resort to filibuster on judicial nominations.