Alito's conservatism gives Senate clear choice

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON - It may be symbolic of the Senate confirmation battle ahead that federal appeals court Judge Samuel Alito's views on abortion were rejected by the woman he would replace on the Supreme Court, Justice Sandra Day O’Connor.

Early reaction from Democratic senators indicated that the historic battle over O'Connor's successor may well end in Democrats trying to block a vote on the nominee with a filibuster.

Contributing to that assessment is a 1991 case in which Alito dissented when his colleagues on the U.S. Court of Appeals for the Third Circuit struck down a spousal notification provision in Pennsylvania’s law restricting abortion.

In that case, Planned Parenthood v. Casey, Alito argued that the Pennsylvania legislature was well within its rights in requiring that women inform their husbands prior to getting an abortion.

He argued that the legislature “could have reasonably concluded” that the spousal notice provision would “properly further a husband's interests in the fetus."

“Needless to say, the plight of any women, no matter how few, who may suffer physical abuse or other harm as a result of this provision is a matter of grave concern,” he said.

But Alito argued that “it is apparent that the Pennsylvania legislature considered this problem” and tried to prevent the law from harming women by allowing four exceptions to the spousal notice rule. One of the exceptions was if the pregnant woman had reason to believe that notifying her husband would likely result in the infliction of bodily injury to her.

Except for the spousal notification rule, the appeals court upheld the Pennsylvania law -- brought by then-Gov. Robert Casey -- which included a requirement that women wait for 24 hours for an abortion after a doctor provided them with information on the procedure and the development of the fetus. The law also required that a minor seeking an abortion get the consent of one parent.

O'Connor rejects Alito's dissent
The following year, the Supreme Court handed down its landmark ruling in Planned Parenthood v. Casey. The majority decision was co-authored by O’Connor and joined by Justices Anthony Kennedy and David Souter.

In that decision, O’Connor and her allies said the spousal notification part of the Pennsylvania law did in fact impose an “undue burden” on a woman seeking an abortion.

The majority upheld the rest of the statute.

It is the fear that Alito might vote to reverse Planned Parenthood v. Casey and its precursor, Roe v. Wade, that will supply much of the fervor in the Senate confirmation battle.

Democrats criticize nomination
Liberal Democratic senators immediately sent signals they'll fight Alito's nomination.

"It is sad that the president felt he had to pick a nominee likely to divide America, instead of choosing a nominee in the mold of Sandra Day O'Connor," said Sen. Charles Schumer, D-N.Y. He said Alito "would make the court less diverse and far more conservative."

Schumer indicated that Democrats in the Senate will seek documents from Alito's tenure at the Justice Department, where he served prior to being appointed to the court of appeals.

When reporters asked him about a potential filibuster of Alito, Schumer said "nothing is on the table, nothing is off the table."

In a written statement issued just minutes after Bush announced Alito’s nomination, Sen. Edward Kennedy, D-Mass., contended that the president ought to have replaced O’Connor with another O’Connor who would maintain the court’s status quo.

“The far right has now forced the president to choose a nominee that they think has views as extreme as their own,” Kennedy said. “There are many serious questions about whether Judge Alito is a mainstream nominee fit to fill the seat of Justice O'Connor.  She was able to unite and strengthen our country through her careful, non-ideological approach to the law.”

But Majority Leader Bill Frist rebuffed Democrats' hints of a filibuster. "If Democrats want a fight, they'll get a fight," he said.

Under the terms of a May 23 accord signed by 14 senators, known as "the Gang of 14," those senators agreed they would not support a filibuster of a judicial nominee, unless there were undefined "extraordinary circumstances" that compelled such a filibuster. Seven senators from each party joined the May 23 accord.

One of them, Sen. Mike DeWine, R-Ohio, told MSNBC Monday that it was "hard to believe" that Alito's nomination would qualify as an extraordinary circumstance under the terms of the May 23 agreement.

MORE FROM THE CHANGING COURT

The Changing Court Section Front

On first case, Alito splits with right Alito sworn in as Supreme Court justice Alito lends touch of drama to State of Union Analysis: Why Bush won the Alito fight The Changing Court Section Front   Add The Changing Court headlines to your news reader: