Thank you for sharing!

Your article was successfully shared with the contacts you provided.
With Senate Democrats clearly outnumbered, liberal interest groups are staking their campaign against Samuel Alito Jr. on a simple strategy: Transform Alito into Robert Bork by any means possible — whether the shoe fits or not. “There are many similarities,” notes People For the American Way’s Ralph Neas, who led the coalition opposed to Bork and is helping lead the effort against Alito. Not least of these is that Alito, like Bork, is a conservative judge picked to replace a moderate swing justice. For Bork, it was Lewis Powell; for Alito, it is Sandra Day O’Connor. “This is a rare moment in history,” adds Neas. But just how closely Alito’s jurisprudence mirrors Bork’s is open to debate, but that’s almost beside the point. What matters in the mounting slugfest over Alito’s nomination to the Supreme Court is whether his opponents can sell the idea that the mild-mannered jurist is just a quieter, gentler version of Bork — still a potent symbol of judicial extremism in the minds of most Americans. Indeed, shaping public opinion and then persuading constituents to roar at their senators have become important elements of any judicial campaign. But it’s particularly crucial in Alito’s situation, where a handful of moderate Republicans and Democrats will determine whether he cruises to confirmation next month, barely squeaks by, loses an up-or-down vote, or is filibustered. To defeat Alito, says John Samples, who directs the Cato Institute’s Center for Representative Government, opponents must prove “not just that he’s conservative or that he’s against abortion personally — they need to show he’s nuts.” And not just to the Senate. Far more effective, says Samples, is the type of messaging that frames Alito for voters. “There is a public element to this,” he says. “If you can get the public to believe he’s way out there, then you can move some of these senators who would be inclined to vote for him.” In Bork’s case, public opinion played a critical role in scuttling his nomination in the Senate in 1987. “A lot of lies were being told, and it would have been good if somebody had been out there rebutting them,” says Bork, now a distinguished fellow at the conservative Hudson Institute. “You have to have your countervailing soundbites, although it’s a hell of a world where we choose Supreme Court justices by soundbites.” For interest groups joining the anti-Alito bandwagon — and their numbers are growing — there are risks in such brinkmanship. Chief among them is that their “sky-is-falling” rhetoric may erode their credibility among the moderates whose votes they seek. Says Christian Myers, the executive director of Progress for America, a pro-Alito lobby: “If the Democrats think they can take a few instances out of context and have a groundswell of support around those few instances, I don’t think they will be successful. I think the people who are going to pay attention to this are smarter than that.” AN OPEN FIELD There remain a lot of hearts and minds to be captured. With four weeks to go before hearings begin, a CBS News poll last week showed that 75 percent of the American public are undecided in their opinion of Alito, or haven’t yet heard enough to have an opinion. On the other hand, the poll revealed the opposition has an uphill battle, with only a quarter of Americans saying the president’s Supreme Court picks have been more conservative than they like and 50 percent saying they like what they have seen. To that end, both sides are crafting competing images of the nominee for the public: a man with a credibility problem versus a man of integrity; a jurist with an ideological agenda versus a jurist who worships stability and precedent; a defender of corporate America versus a straight shooter; a radical right-winger versus a pragmatic conservative. That same sort of framing took place during Bork’s nomination, framing that ultimately led to his 58-42 defeat in the Senate. A handful of conservative Southern Democrats, who might have been expected to vote for Bork, stuck with their caucus and opposed him, while six liberal Republicans bucked President Ronald Reagan and voted not to confirm the nominee. “When they first threw his name out, I don’t recall being set against him,” remembers former Sen. Bennett Johnston Jr., D-La., who has led his own lobby shop since retiring from the Senate in 1997. But a steady drumbeat of negative messages convinced Johnston’s African-American constituency that Bork was a real threat to civil rights. “Clearly, in the black community he was anathema, and you don’t want to poke your finger in the eye of one of your important constituencies,” Johnston says. Polling by both the Roper Organization and Louis Harris and Associates confirmed negative feelings about Bork among a majority of Americans. Those polls, wrote Ethan Bronner in his 1989 book on the nomination, Battle For Justice, “were enormously influential with Southern Senators.” Bronner wrote: “In the case of the Bork nomination the negative statements about Bork were far more compelling than the positive ones. There is no evidence that pollsters consciously loaded their questions. But the way the debate had been framed publicly led them to do so inadvertently… . Since the anti-Bork forces emphasized the results of his views, and the pro-Bork forces only his ability to examine legal issues dispassionately, the argument was naturally more compelling on one side than the other.” EXTREME MEASURES That’s been the template for the Alito nomination. In an e-mail sent to People For the American Way supporters Dec. 7, titled “Senate Shockwaves,” Alito is pounded for his “extremism” while recipients are asked to read a “chilling” memo Alito wrote as an attorney in the Reagan Solicitor General’s Office. The memo is one of three the National Archives and Records Administration released of legal writings that Alito drafted while he was in the SG’s office. The Bush administration never intended to make any internal SG documents public, but they were part of a previously approved Department of Justice document dump six years ago, and, consequently, the National Archives had no choice but to release them after they were requested under the Freedom of Information Act. The memos concern Alito’s strategy for overturning abortion rights and his argument for letting the states give police their own discretionary powers to shoot to kill. They make for precisely the sort of evidence that allows his opponents to illustrate, as happened with Bork, the practical results of Alito’s views and how they might affect society. The memos and Alito’s 1985 application for a political-appointee job at the DOJ’s Office of Legal Counsel (in which he lays out his personal political beliefs) give his opponents plenty of ammunition to cast him as an extremist. Meanwhile, as was the case with Bork, his supporters are forced to go on the defensive and speak in far more general — and benign — terms. “The American people elected a conservative president, and he has a right to nominate a qualified person,” notes pollster David Winston, echoing perhaps the major theme in the pro-Alito camp. “If he makes the Court more conservative, what’s wrong with that? This is a center-right country.” The American public wants Congress to get things done, Winston adds, and if Democrats block nominations, it will be at their own peril. “Stopping something is the moral equivalent of putting out a fire in your house,” notes Winston, who polls for the Senate Republican leadership. “No matter what happens, your house is not better off.” There are significant differences, of course, between Bork and Alito. Bork was an unreconstructed constitutional originalist, a prickly academic whose combative personality — and refusal to concede, for example, that the Griswold v. Connecticut privacy decision had become entrenched law — clearly helped sink his nomination. And, in fact, even Bork isn’t sure how closely Alito, while undeniably conservative, matches his own stark judicial philosophy. “I would be astounded if he would vote to create new constitutional rights that are nowhere to be found in the Constitution,” Bork says. “But I don’t know whether he would go back and try to overturn some of the travesties of the past — Roe v. Wade and the establishment clause decisions which have nothing to do with the establishment clause — which I would have done.” COUNTING THE VOTES And there are other roadblocks in the way of portraying Alito as a Bork-lite. Alito has several huge and probably unassailable advantages: He is much more personable, has bipartisan support, and has the backing of well-funded interest groups ready to rebut charges against him. He is also a distinguished jurist who has spent his entire professional life in public service. Perhaps most important, unlike the Democrat-dominated Senate that defeated Bork, the GOP now has a 55-45 edge. (When Bork was defeated, Democrats had a 55-seat majority.) That means, to defeat Alito without a filibuster, which brings its own set of problems, the Senate’s 44 Democrats and one independent, Vermont’s James Jeffords, must all stick together and persuade at least six Republicans to join them. For now, the betting is that at least one Democrat, Nebraska’s Ben Nelson, and possibly a handful more will break ranks and vote to confirm Alito. Among Senate Republicans, so far there are only three plausible “no” votes: Rhode Island’s John Chafee and Maine’s Susan Collins and Olympia Snowe, all abortion rights supporters. And even those are not sure bets. Persuading the next-most-likely Republicans to vote against Alito, senators such as Gordon Smith, Ore., John Warner, Va., Lisa Murkowski, Alaska, and, the biggest catch of all, Judiciary Committee Chairman Arlen Specter, Pa., will take some real work. That’s where the campaigning comes in. Already, Alito’s opponents have been able to highlight inconsistencies between the nominee’s written record and his responses to questions about those writings, however trivial the disconnect. And that has given his opponents one of their biggest messaging points: that Alito has a yawning credibility gap. “This is a guy who can’t be trusted to protect our rights and freedoms,” says David Smith, a partner at GMMB, the political consulting firm that is producing a series of television spots for IndependentCourt.org, a coalition of anti-Alito groups. “Why? By his actions, his evasiveness, his lack of candor. For a lifetime appointment, it all adds up. And that gives people pause.” There are three issues on which People For the American Way plans to attack Alito’s credibility. First, his varying explanations of his two 1985 memos, which take a strong position against abortion. Second, his failure to recuse himself on every case involving Vanguard, the mutual fund company that managed some of Alito’s investments during his 15 years on the 3rd Circuit Court of Appeals. Lastly, his response to the Senate Judiciary Committee, in his nomination questionnaire, that he has no recollection of belonging to the Concerned Alumni of Princeton, which actively opposed gender-neutral admissions at Alito’s undergraduate alma mater. Alito had mentioned belonging to the group on his 1985 DOJ job application. The significance of any of these matters is likely to turn on Alito’s responses at his hearings. Does he characterize his anti-abortion writings as those of an advocate and not reflective of his own views? Or does he admit he agrees with them while arguing that personal opinions will not affect his jurisprudence? In the coming weeks, expect the already sharp rhetorical combat to escalate — something for which Neas makes no apologies. “Every person we have opposed has been worse than we imagined,” he says, referring specifically to Supreme Court Justice Clarence Thomas and Bork. “The only thing we’ve been guilty of is understatement.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.