Judge AlitoSenator Charles Schumer, a leader of the liberal Democrats in the U.S. Senate, made it very clear Wednesday that he intends to oppose Judge Samuel Alito’s nomination in the U.S. Supreme Court. Senate hearings are expected to begin on the Alito nomination on January 9, and the liberal opponents of the President’s nominees are focusing on Alito’s statement of opposition to abortion when he applied for a Justice Department job in the Reagan Administration in 1985. At that time Alito expressed his "disagreement" with many of the Supreme Court rulings handed down under the liberal Chief Justice Earl Warren. In the job application that he submitted prior to the time he was elevated to the federal bench, Judge Alito expressed his belief "that the Constitution does not protect a right to an abortion".
Since his nomination to the U.S. Supreme Court, Judge Alito – like Chief Justice John Roberts before him – has expressed to the senators that he has "great respect" as a Judge for the precedent power of previous Court decisions, including the Roe v. Wade case, which was the landmark 1973 abortion ruling.
At the moment, Judge Alito appears to have sufficient support in the U.S. Senate to overcome any Democratic-led filibuster, but abortion rights advocates are mounting a major campaign against Alito. In recent decades, support for abortion rights has become a litmus test for potential Democratic candidates for the Presidency. The last Democratic nominee who ran as a "pro-life" candidate was Jimmy Carter who won the Presidency in 1976 only to lose to Ronald Reagan in 1980. Carter warned recently that the Democratic Party has become too closely identified with a pro-abortion viewpoint and should be more open to pro-life candidates running as Democrats. By highlighting Judge Alito’s opposition to abortion as a reason to vote against him, Sen. Schumer clearly isn’t paying much attention to former President Carter’s views that the Democrats are hurting themselves by being so identified with the abortion rights position.
There is a certain irony in how the Bush Administration is promoting the Alito nomination as compared to how it handled the brief campaign on behalf of Harriet Miers. With Miers, the Administration went out of its way to emphasize her strong ties to an evangelical church and had friends of hers who were judges vouch to social conservative supporters of the President they were confident she would vote to overturn Roe v. Wade. In the case of the Alito nomination, the Administration has done just the opposite, emphasizing Judge Alito’s respect for precedent.
Reading between the lines, the reality is that (more likely than not) Judge Alito is more supportive of the view that the abortion issue is a political issue which generally should be resolved by elected, legislative branch of government rather than by federal judges. That is not to say, however, that Judge Alito – or John Roberts for that matter – would vote to overturn Roe v. Wade. Even if both Roberts and Alito were so inclined to revisit the Roe decision, that would still leave only 4 votes on the 9 member Supreme Court willing to reverse Roe v. Wade. Assuming that Judge Alito is confirmed, what people can expect going forward is that the Supreme Court will show more deference for legislative and Congressional acts designed to place limits on abortion rights.