58-42!

Alito's successful confirmation vote is exact converse of Bork's defeat

On January 31, 2006, the Senate confirmed George W. Bush’s nomination of Samuel Alito to the Supreme Court by a vote of 58 to 42. That vote was the exact converse of the vote that defeated Ronald Reagan’s nomination of Robert Bork in October 1987.

It’s worth pondering what happened in the intervening two decades to account for the shift.

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The easy answer is that the Senate that defeated the Bork nomination had a 54-seat Democratic majority and that the Senate that confirmed the Alito nomination had a 55-seat Republican majority. There is a lot of truth to that easy answer.

Many people marvel at the fact that the Senate confirmed Antonin Scalia’s nomination unanimously in 1986 and then defeated Bork’s nomination a year later. But a big part of the answer to the puzzle is that Republicans controlled the Senate for Scalia’s nomination but then lost their majority in the November 1986 elections.

Another part of the answer is that Scalia’s nomination was concurrent with Reagan’s elevation of William Rehnquist to Chief Justice. Aiming to kill two birds with one stone, Senate Democrats focused their fire on Rehnquist: if they defeated his elevation, he would remain as an associate justice and Scalia could not be appointed to his seat. Yet another part of the answer is that Scalia’s Italian-American ethnicity had sway with Democratic constituencies. So, Senate Democrats reasoned, if you don’t have the votes to defeat him, what’s the point of voting against him?

If Democrats had a Senate majority for the Alito nomination, it is very likely that Alito would not have been confirmed, and President Bush would probably not even have nominated him.

But the easy answer obscures an important development that helps explain why Republicans controlled the Senate for the Alito nomination: Republicans were winning the political battle over judicial philosophy.

As we have seen, Bill Clinton’s lower-court appointments played a surprisingly large role in the Senate elections in 1994 in which Republicans gained eight seats to win control of the Senate. Although Bob Dole lost his bid to defeat Clinton’s re-election in 1996, he discovered that the fight over judges had special resonance with voters, and Clinton himself was so scared of the issue that he pressured one of his own judicial appointees to reverse a ruling in favor of a drug dealer.

In 2004, Republican challenger John Thune slammed Democratic leader Tom Daschle for the Democratic filibuster of Bush’s appellate nominees and was amazed by the impact the issue had in his successful ouster of Daschle. On Election Day in 2004, Senate Republicans gained a net four seats and expanded their majority from a very tight 51-to-49 edge to a very comfortable margin of 55 to 45.

So, yes, Alito was confirmed because Republicans controlled the Senate. But a large factor in their winning control is that they had engaged in and won the battle over judicial philosophy that many of them (or their predecessors) had thought was hopelessly lost after the Bork defeat.

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The political appeal of judicial conservatism also meant that the Republican caucus in the Senate had become much more ideologically cohesive. In 1987, six Republican senators voted against Bork. In 2006, only Lincoln Chafee of Rhode Island, the epitome of a RINO (Republican in name only), voted against Alito. Arlen Specter had voted against Bork, but in becoming Judiciary Committee chairman in 2005 he recognized that he had an institutional responsibility to his much more conservative colleagues that superseded his own views. The small handful of other moderate to liberal Republicans, having the good sense not to invite a primary challenge in their next election, stayed on board.

Justice Samuel Alito takes the oath of office, February 1, 2006

Four Democrats voted for Alito’s confirmation—just two more than voted for Bork’s. But it’s much more telling that 19 Democrats voted against John Kerry’s filibuster folly in order not to be seen by their constituents as obstructionist, and that plenty of other Democrats—including minority leader Harry Reid—were happy for them to do so.

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Samuel Alito’s confirmation vindicated the conservative revolt against Bush’s previous nomination of Harriet Miers. It showed that a Republican majority in the Senate would be able to confirm a Supreme Court nominee with a robust record as a judicial conservative. And it dramatically increased the clout that the conservative legal movement would have over the next Republican president’s decision whom to nominate to the Supreme Court.