Scalia by Bruce Allen Murphy

Author:Bruce Allen Murphy
Language: eng
Format: epub
Publisher: Simon & Schuster

CHAPTER 19

The Dead Constitution Tour

His charm offensive now over, for the first time Scalia knew what position he would hold for the rest of his professional life. As the composition of the Court continued to change, so would its ideological direction. With O’Connor’s vacancy to fill, on October 3, 2005, President Bush selected White House counsel Harriet Miers, his former deputy White House chief of staff. The nomination ran into immediate trouble because of concerted opposition from conservatives. When the opposition grew, much of it on conservative internet blog sites, owing to the lack of certainty as to Miers’s legal views, Bush withdrew the nomination on October 27.

Three days later, determined not to repeat the Miers debacle, Bush nominated a Federalist Society favorite, fifty-six-year-old Samuel Alito, who was then serving on the federal Court of Appeals for the Third Circuit. Alito’s confirmation was not without incident. During the confirmation hearing, his fate briefly seemed to be in jeopardy when the Senate Judiciary Committee focused on a “Personal Qualifications Statement” Alito had filed in 1985, hoping to get a job as an assistant attorney general in the Reagan administration. It mentioned his membership for over a decade in the conservative Concerned Alumni of Princeton, or CAP, which opposed the admission of minorities and women to the school. This was interpreted by the Senate Democrats, including Richard “Dick” Durbin of Illinois, as an indication that Alito did “not evidence an open mind.” The grilling was so severe that when conservative South Carolina Republican Lindsey Graham later tried to rehabilitate the candidate by asking, “Are you a bigot?,” Alito’s wife, Martha-Ann, began to cry.1 Despite an attempted filibuster by Massachusetts senator John Kerry and opposition from the ACLU, Alito, the son of Italian immigrant schoolteachers from New Jersey, was confirmed by the Senate to become the second Italian American to serve on the U.S. Supreme Court on January 31, 2006. Alito’s ethnic heritage, his conservative Catholic faith, and his ultraconservative political views initially seemed to be so similar to Scalia’s that he was nicknamed “Scalito.”

The jurisprudential and ideological comparison of the new justice to Scalia ultimately did not prove to be accurate, given Alito’s lack of appreciation for the senior jurist’s originalism theory.2 However, the replacement of the conservative Alito for the more moderate swing justice, Sandra Day O’Connor, would soon tilt the Court more clearly to the conservative side. As it did, Justice Anthony Kennedy, who since 1994 had voted consistently to the conservative side of Sandra Day O’Connor, would become the new pivotal swing justice, determining with his vote the outcome in key cases.

For his part, still an associate justice, and with nothing to gain or lose, Scalia was free to be whoever he wanted to be, and behave any way he desired without worrying about the consequences.3 He had something to say, and now there was no rule or person to prevent him from saying it. He was ready to go back to the only place where he had been

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