Some who do not want to see Alito on the Supreme Court ask why it’s worth fighting to defeat the nomination since George W. Bush could just come up with another, equally objectionable nominee if Alito is rejected. Here’s our answer.
First of all, each nomination has to be evaluated on its own merits, and a nominee whose record shows him or her to be unfit for a lifetime seat on our nation’s highest court should not be confirmed.
In addition, history has shown that when a president doesn’t get his way with his first or second choice for the Supreme Court, he may select someone with broader support and a more moderate record the next time around. For example, President Nixon twice failed to get a nominee confirmed to the Supreme Court spot vacated by Justice Abe Fortas: the nominations of Clement F. Haynsworth, Jr. in 1969 and G. Harrold Carswell in 1970 both failed due to Senators’ ideological and other objections to the nominees. President Nixon’s third try, Harry Blackmun, was a consensus nominee who was easily confirmed. And of course, he turned out to be a moderate Justice, most well known for having authored Roe v. Wade.
And don’t forget what happened after President Reagan nominated Robert Bork to a vacancy on the Supreme Court in 1987. Judge Bork’s views were very extreme -- he had publicly stated that there was no constitutional right to privacy, and he advocated narrowing other fundamental legal protections such as the right to free speech and to equal protection of the law. After a loud public outcry, the Senate rejected the Bork nomination. President Reagan’s second choice, Douglas Ginsburg, asked that his nomination be withdrawn after a controversy arose over his past use of marijuana. President Reagan then selected Anthony Kennedy, who was confirmed unanimously. Upon his confirmation, Kennedy reportedly received a note from Justice Blackmun welcoming him to "the good old No. 3 club." Although Justice Kennedy is certainly conservative, he has proven to be very different from Bork. For example, Kennedy authored the Court’s opinion in 2003, Lawrence v. Texas, holding that the constitutional right to privacy bars a state from criminalizing consensual sex between adults.
And the fallout from the Bork battle didn't end with Justice Kennedy's confirmation. For the next opening after that, in 1990, the first President Bush -- eager to avoid another heated confirmation fight a la Bork's -- named David Souter, who has turned out to be a moderate on the Court.
Of course, there’s no way to know what will happen next if the Senate rejects the Alito nomination. But Alito, don’t forget, is Bush’s second choice, picked after Harriet Miers' nomination was withdrawn. If the Senate says "no" to Alito, perhaps the White House, on its third try, will come up with a qualified, less extreme nominee. History suggests this is no pipedream.
