Jewish World Review Nov. 2, 2005 / 30 Tishrei, 5766

With Alito pick, Bush dares Democrats

By Peter A. Brown

http://www.JewishWorldReview.com | He's ready for a high-stakes game of chicken over the Supreme Court nomination. George Bush's choice of Samuel Alito is an acknowledgement that politics is a zero-sum game, and that pleasing your supporters — especially when they're in the majority — takes precedence over the other side's complaints.

Bush has been in a slump; his poll numbers stink. The Supreme Court nomination of Alito, however, is the act of a man who knows that there is nothing better to reverse sagging fortunes than winning an all-out battle.

He is daring Democrats to make his day.

In a party-line division, Democrats don't have the votes to defeat Alito — unless they want to take the ultimate gamble on a filibuster.

If they lose a filibuster test, they would be giving Bush a free pass to nominate whomever he wants in the next three years should another vacancy occur. One of the liberals' favorite justices, John Paul Stevens, is 85.

It is possible Alito won't pass muster with six GOP senators, the number of converts a unified Democratic Party needs to beat him.

That seems unlikely, though, absent new revelations about a man who has long been scrutinized as a possible Supreme Court justice. Also, it's as likely some Democrats would support Alito as Republicans will oppose him.

Supreme Court confirmations are elections with 100 voters. The GOP has 55, plus Vice President Dick Cheney is the tiebreaker. Bush is baiting Democrats who have been itching for a Supreme Court fight. If they do, the president has the opportunity to win a confrontation that could reverse his political fortunes.

He could have made a less bold nomination than a jurist whom some compare to Supreme Court Justice Antonin Scalia, whose rulings generally displease Democrats.

Senate Democratic leader Harry Reid, who had told Bush that he would not fight the selection of Harriet Miers, publicly warned Bush not to nominate Alito if he wanted to avoid a no-holds-barred fight. On paper, Democrats have the 41 votes (with four to spare) to filibuster the nomination, although seven of their members have previously agreed not to do so except in the case of "extraordinary circumstances."

Republican Senate Leader Bill Frist has warned said that if the Democrats take that route, he would try to change the rules to require 51 votes to sustain a filibuster — and he might well have enough support.

Seven of the 55 GOP senators joined with the seven moderate Democrats to resolve a dispute over Bush's nominees to the U.S. Courts of Appeals last spring. The Republicans reserved the right to change the rules should their Democratic colleagues filibuster in the future.

The question is whether those seven Democrats consider Alito so extreme that they would support a filibuster, and then whether the seven Republicans would agree with Frist to change the rules. Look for the confirmation to become a giant game of chicken.

Democrats would have to be sure they could prevail — otherwise a rules change would create a risky situation for them should Bush get another Supreme Court appointment. That would be the case even if, as expected, they pick up some Senate seats next year, but not enough for a majority.

Make no mistake about it: Alito gives Teddy Kennedy & Co. horrors. He is the prototype of the judge who thinks the courts have gone too far in stepping in to create law that state and federal legislators have been unwilling to write.

Moreover, his judicial credentials are unassailable. He has spent 15 years as a U.S. Court of Appeals judge and is considered to be a top-flight legal mind, even by those who abhor his decisions.

Since Bush's election, in 2000, liberal interest groups have been raising millions of dollars to defeat Bush court nominees. They decided John Roberts' credentials were so impressive they could not defeat him, and he was easily confirmed as chief justice in September.

They were generally silent over Bush's choice of Miers because she was the most acceptable candidate they could get, and they knew that praising her would just kill her nomination with Republicans. Even without their overt support, the very views and background that made her more acceptable to Democrats were the reasons she became unacceptable to the president's conservative base, which is why she withdrew as a nominee.

The Democrats and their interest-group allies now must decide how much to risk on the Alito nomination.

To go all-out to stop Alito risks not just losing the nomination fight.

It risks giving new traction to a president who has been on the ropes. And that could remove the biggest asset Democrats have entering the 2006 elections.