Philosophy, Strategy, and the Courts: Alito’s Confirmation was a Long Time Coming

Parties and presidents recognize the immense and lasting power of the Supreme Court. For years after an administration has left office, a president’s philosophy can live on through the justices that he (and someday she!) has helped to lead to the bench.

That’s why "conservative" Republicans worked so hard to pave the way for Chief Justice John G. Roberts and newly-confirmed Samuel A. Alito Jr.

Roberts and Alito are not simply lucky. Their paths were carefully mapped by colleagues with conservative judicial philosophies.

Since the court has a say over everything from school curricula to business practices to abortion, the parties want their particular philosophies to be protected by the court, particularly if they lose the majority in the legislature.

Strategy to take the court - getting in the pipeline

Conservative Republicans have been planning to become the majority since Lyndon Johnson’s defeat of Barry Goldwater in 1964. And they have worked to take back the court since at least 1982 at the formation of the now-powerful Federalist Society, a group that has chapters in law schools and seeks out the best and the brightest law students and young lawyers.

The Federalist Society believes that the American legal system should emphasize individual liberty and promote a "moral order" in tune with the conservative movement. This philosophy was propagated by Edwin Meese III, attorney general to the Reagan administration, for which both Roberts and Alito worked.

Strategist Boyden Gray, White House counsel in the first Bush administration, had the foresight to recommend these young and conservative lawyers for the lower federal courts, priming them for the highest court in the land. Alito was nominated by George H. W. Bush on February 20, 1990 to the United States Court of Appeals for the Third Circuit.

Securing the nomination and the public’s focus

Once Alito was nominated to the Supreme Court, the strategy was to focus on his credentials as a lawyer and a judge and to avoid hot-button issues like abortion. The strategy worked well with the public because the message was clear and consistent among supporters.

The Federalist Society has well-established connections among Christian groups like Focus on the Family and the American Family Association and so was able to disseminate this message through a wide network at the grassroots. Members of these groups did not only contact their Senators and tell them how to vote, but also stayed on message about Alito’s qualifications when interviewed by the press. By directing the conversation away from the abortion question, Alito supporters lessened much of the opposition’s fire power -- opponents had hoped to focus on Alito’s anti-abortion views.

The vote - the last stage in the process

Democrats were divided about filibustering Alito. Some, like Senator Dianne Feinstein of California, saw Alito’s confirmation in very clear terms, saying a vote for Alito was a vote against abortion rights. Other Democrats were worried that they would be viewed as inflexible or as obstructionists to the justice system. With elections coming up in November 2006, many Democrats were hesitant to draw criticism.

Seventy-two senators, including 19 Democrats, voted Monday to limit debate on the nomination, squelching a filibuster attempt by Massachusetts Democrats Edward M. Kennedy and John Kerry.

On January 31, 2006, the Senate confirmed Samuel A. Alito to the Supreme Court 58-to-42. The vote followed party lines apart from Democrats Kent Conrad of North Dakota, Ben Nelson of Nebraska, Tim Johnson of South Dakota, and Robert Byrd of West Virginia, who all voted to confirm Alito. Lincoln Chafee of Rhode Island was the only Republican who voted against him.

The importance of philosophy

President Bush, like all presidents do, nominated both Roberts and Alito because their judicial philosophies match his own.

Bush, Roberts, and Alito share the judicial philosophy of the Federalist Society, which questions government intervention in business and the powers of government agencies like the Environmental Protection Agency. This judicial philosophy doubts the necessity of voting rights laws and gender equity laws like Title IX. Furthermore, Many Federalist Society publications have argued against teaching evolution and the principle of the separation of church and state.

What is your philosophy of government and the courts? What are their main purposes? How should the courts function, what should they protect, and what should government dive into or stay out of?

Your input matters

Your representatives in Congress DO care what you think. Especially now -- 2006 is an election year and many representatives will be looking to reconnect with their constituents. Let your congressmen and women know what you think! Give your senators a piece of your mind! To find your reps, click here.

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Posted on: 2/1/2006