WASHINGTON -- Since the State of the Union address became a prime-time television spectacle, no president has ever walked into the House chamber and seen in the front row his Supreme Court nominee who’d been sworn in that very day.
At 11:18 am Tuesday the Senate confirmed Samuel Alito, the culmination of a battle that began last July when Justice Sandra Day O’Connor announced that she was retiring.
An hour and 20 minutes later, at the Supreme Court, Chief Justice John Roberts swore in his new colleague.
And just eight hours after that, Justice Alito took a seat alongside Roberts -- who himself was confirmed in September -- and several other justices in the front row of the chamber of the House of Representatives to listen to President Bush’s State of the Union address.
Although Alito himself isn’t a dramatic persona, his presence will add a pinch of drama to this occasion.
Tradition of justices attending
Since President Lyndon Johnson made the State of the Union a prime-time television event in 1965, we’ve become accustomed to seeing the justices walk into the House chamber as part of the ceremonial supporting ensemble for the president.
As with the attendance of the Joint Chiefs of Staff and the diplomatic corps, the justices lend an air of non-congressional celebrity and solemnity to a political event. The tradition began in the 1950s.
Last year only Justice Stephen Breyer showed up for the State of the Union. Bush shook Breyer’s hand both coming in and going out and even gave Breyer a small hug.
If, as Senate Republican sources expect, Alito walks into the House chamber tonight, Bush not only gets to claim victory before a prime-time audience, he gets to have the embodiment of that victory right there for 40 million people to see.
Some Alito adversaries said they thought the new justice should stay away from the State of the Union event as a way of demonstrating that now that he’s on the court, he will be independent of Bush.
Should Alito stay away?
“In light of the politically charged atmosphere around this nomination, I think it would be a positive step to de-politicize the court, and for the independence of the court, if Alito were not to appear,” said Elliot Mincberg, general counsel of the liberal advocacy group People for the American Way, just moments before the Senate voted to confirm Alito.
Mincberg said that because historic cases testing the legality of Bush’s actions in the War on Terror and the limits of presidential power were soon coming before Alito and the court — such as the Hamdan case involving a Guantanamo detainee — it is “all the more important to try to maintain every possible indicia of his independence from the executive.”
Mincberg said for Bush “to use the address to crow about what it clearly a partisan victory” with the Alito confirmation would be another example of him being the opposite of what he campaigned as in 2000, “a uniter, not a divider.”
Nan Aron, president of the Alliance for Justice, another group that opposed Alito, said, "Given the American people's concern about Alito's independence from this president, prudence would suggest that he not be Exhibit One in Bush's spoils of war."
When we asked Judiciary Committee Chairman Arlen Specter, R-Pa., after Tuesday’s vote whether he thought Alito should stay away from the State of the Union, he dismissed the notion as frivolous.
'What he damn well pleases'
“I think he ought to do what he damn well pleases,” Specter said, adding that "if he wants to take the night off,” that would be fine with him.
“But it is the tradition and the protocol for justices to attend,” Specter said. “That doesn’t mean they are beholden to the president…. I would say, let him show up and not applaud.”
Alito’s presence will be symbolic of the president’s impact of Bush on the court: 221 judges appointed by Bush are now on the federal bench – about 17 percent of all federal judges serving.
Three hundred-fifty of Bill Clinton’s appointees now serve on the bench, about 27 percent of all federal judges.
Beset by problems from Iran to the Medicare prescription drug plan, Bush can look to the courts as one shining success in a multitude of troubles. He is having an impact on the judiciary, one that will last long after he’s gone from the White House.
Alito will celebrate his 56th birthday on April 1. He’ll likely be on the high court for 25 or 30 years.