IE 11 is not supported. For an optimal experience visit our site on another browser.

Why Bush won the Alito fight

How can such an apparently unpopular president win such historic victories?'s Tom Curry explains the decisive moments in the battle to put Samuel Alito on the Supreme Court.
President Bush Has Breakfast With Samuel Alito
President Bush greets Supreme Court nominee Judge Samuel Alito in the Oval Office on Jan. 9.The White House / Getty Images file
/ Source:

WASHINGTON - The Senate's vote Tuesday to confirm Judge Samuel Alito to the Supreme Court to replace Sandra Day O’Connor is — along with President Bush’s victory on Chief Justice John Roberts — the biggest domestic victory of his two terms as president.

This is all the more remarkable given the president's anemic approval ratings over the past few months. The latest , released Monday, shows Bush’s approval rating at 39 percent, which is unchanged from last month’s survey.

How can such an apparently unpopular president win such historic victories?

Eighteen months ago, the Senate Democrats brandished the threat of filibuster, or endless debate, to block ten of Bush’s judicial nominees from getting confirmation votes.

“Minority rules!” was the triumphant principle for the Democrats as they expertly played defense.

Success in using filibuster
“Our campaign to stop Bush's extremist nominees has been extraordinarily successful so far,” boasted a Nov. 12, 2003 e-mail from, the left-leaning Democratic group. “Miguel Estrada, who was widely thought to be President Bush's top pick for the Supreme Court, withdrew his name from consideration after Senators filibustered his nomination, supported by more than 40,000 phone calls from MoveOn members.”

So at what point did Bush turn the tide and begin the comeback that ultimately clinched victory for Alito?

You might pick as the most significant date May 9, 2003 when Senate Majority Leader Bill Frist offered Senate Resolution 138, which would made it easier to stop filibusters, by lowering the number of votes needed to stop one from 60 to 51.

Although he took no steps to immediately get his resolution passed, Frist signaled that sooner or later he’d try to abolish filibusters of judicial nominees.

You might also pick April 19, 2004 when Bush flew to Pittsburgh to campaign for the re-election of Sen. Arlen Specter, the veteran Republican supporter of abortion rights who was in the fight of his political life against a conservative primary challenger, Rep. Pat Toomey.

“He's a little bit independent-minded sometimes. But there's nothing wrong with that,” Bush told a Specter fund-raising event. “I can count on this man….He's a firm ally when it matters most.” And so he proved to be.

Specter as field commander
After eking out a victory over Toomey, Specter went on to become a superb field commander for Bush’s judicial nominees. He became the chairman of the Senate Judiciary Committee in January 2005 and fought to win confirmation for several of the president's conservative nominees.

Another significant date was May 23, 2005. On that day 14 senators, seven from each party, signed an agreement pledging that they would not resort to filibusters of judicial nominees unless there were “extraordinary circumstances,” a phrase the agreement left up to each signatory to define.

Five of the seven Democratic senators who signed the May 23 accord had supported the filibusters of Bush judicial nominees in 2003 and 2004. They were Robert Byrd of West Virginia, Daniel Inouye of Hawaii, Mary Landrieu of Louisiana, Mark Pryor of Arkansas, and Joe Lieberman of Connecticut.

By signing the deal they made it almost impossible for Democratic Leader Harry Reid to credibly threaten to use the filibuster.

At least two Republican signers of the May 23 accord said they’d support a change in the Senate rules to abolish all judicial filibusters, the so-called nuclear option, if necessary.

If you take the view that the nominee is more important than the procedures, then perhaps the date that most mattered was Oct. 27, 2005, the day that White House Counsel Harriet Miers asked Bush to withdraw her nomination for the O’Connor seat.

The Miers fiasco
Democrats had been almost rubbing their hands in anticipation of defeating a nominee with such dubious qualifications as Miers to serve on the high court, and one who had been Bush’s personal lawyer.

“Cronyism on the Supreme Court is a serious threat to our democracy,” said’s Ben Brandzel on Oct. 5, 2005.

After a closed-door meeting with Miers on Oct. 17, Sen. Charles Schumer, D-N.Y., portrayed her as utterly out of her depth when it came to constitutional law. She needed to “study” in order to get ready for her confirmation hearings, Schumer said.

The Alito-for-Miers swap turned out to be a major setback for the Democrats.

Once Alito stepped in, you could argue that the most important date was Jan. 11, 2006, the emotional turning point of his Senate testimony.

Mrs. Alito fled the hearing room in tears after Sen. Lindsey Graham, R-S.C. expressed regret to Alito that Sen. Edward Kennedy, D-Mass., and other Democrats had attacked him for his membership in the Conservative Alumni of Princeton (CAP).

Some articles in CAP’s magazine — not written by Alito — had voiced inflammatory anti-feminist and anti-gay views. Graham asked Alito whether he was a “closet bigot.” Alito replied, “I’m not any kind of bigot.”

At that moment and at many others during his testimony, Alito appeared to be a sober, cautious and phlegmatic judge. The Democrats had an easier job when they battled Bush appeals court nominees William Pryor and Janice Rogers Brown who had made provocative statements which at least opened the question of whether they had the appropriate judicial temperament.

Puzzling over 'the unitary executive'
A day that might have been — but turned out not to be — a turning point was Dec. 16, 2005, when the New York Times published a page one story revealing Bush’s order to the National Security Agency to monitor international phone calls between al Qaida suspects and people inside the United States.

Democrats tried to connect their alarm over this program with Alito’s endorsement in 2000 of the theory of “the unitary executive.” But the argument did not seem to catch fire with the public, in part because Alito’s 2000 Federalist Society speech on the unitary executive did not refer to national security, but instead to administrative agencies such as the Federal Communications Commission.

By the end of the hearings, even some Democrats had become exasperated with the contrived confirmation ritual.

“Have we finally come to the point where our nation's assessment of its Supreme Court nominee turns more on a simple-minded sound bite or an exploitive snapshot than on the answers provided or withheld by the nominees?” asked Byrd.

This was the same Robert Byrd who showed up last March to give a passionate address at a rally. Byrd denounced Frist for wanting to lower the threshold for ending filibusters.

The Republicans “want to gag the world's greatest deliberative body," Byrd told the enthusiasts. “They want to change the rules so they can pack the courts.”

But the filibuster threat has been neutered, due in part to Byrd himself agreeing to join the May 23 accord.

So last week Byrd struck a different tone from his speech.

Byrd prefers conservative judges
“When it comes to judges, I hale from a conservative state,” Byrd told the Senate. “Similar to a majority of my constituents, I prefer conservative judges…. Judge Alito told me he respected the separation of powers and would not rule in support of a power-hungry President. I liked that answer. I liked Judge Alito. He struck me as a man of his word, and I intend to vote for him.”

After all the rhetoric and maneuvering, the battle over the court is finally decided by whether or not the president and his allies have the votes in the Senate.

Thus the most significant date of all is Nov. 2, 2004, the day that, thanks to efforts by National Republican Senatorial Committee chief Sen. George Allen, GOP strategist Dick Wadhams and others, the Republicans scored a net gain of four seats in the Senate.

Instead of 51 Republican seats, as in 2003 and 2004, Bush could now count on 55 Republican senators.

With their new cushion, GOP leaders could afford to give a pass, if necessary, to the handful of liberal to moderate Republican senators, such as Sen. Lincoln Chafee of Rhode Island, who announced Monday he would vote “no” on Alito.

Lessons of 2004
Meanwhile, Democrats in states that Bush carried in the 2004 election, such as North Dakota, Nebraska and Tennessee, learned from what had happened to former Senate Minority Leader Tom Daschle, who lost his seat to Republican John Thune, partly on the filibuster issue.

Daschle-led filibusters worked in 2003 and 2004 — they did keep nominees such as Estrada off the federal bench.

But they also gave Republican strategists a weapon to use against Democratic Senate candidates, and Democrats responded.

Daschle’s fellow South Dakota Democrat, Sen. Tim Johnson, supported filibusters in 2003 and 2004, but announced last week he’d vote for Alito.

Rep. Harold Ford, the likely Democratic Senate candidate in Tennessee, joined the anti-filibuster chorus last week. “Absent extraordinary circumstances, nominees to the Supreme Court deserve an up-or-down vote,” Ford said.

Using phraseology that Republicans have used, Sen. Kent Conrad, D- N.D., explained Friday why he wouldn’t support a last-ditch effort to filibuster Alito. “Elections have consequences,” Conrad told reporters. “President Bush was re-elected and he made very clear what he would do in terms of court appointees.”

On Monday Conrad joined 16 other Democratic senators in voting “no” on the filibuster. Conrad has announced he'll vote “yes” on Alito, as have three other Democrats.