Bush To Dems: Boo!

Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

Alito has the experience, the training and the temperament for the job. In all of these senses he is closer on the sliding scale of political and legal suitability to the new Chief Justice, John G. Roberts Jr., than he is to the woman he succeeded as a candidate for the Court, Harriet Miers.

But Judge Alito also brings with him to this process a universally-accepted reputation as a rock-ribbed conservative jurist who is not afraid to get out in front of the curve when it comes to the types of social issues that get the president's base foaming at the mouth.

For example, he is to the right of the Court's current majority when it comes to abortion rights — he voted for a marital notice provision in an abortion law early in his career as a judge — and his ascension to Justice Sandra Day O'Connor's seat would immediately narrow that majority in practical ways.

If he gets to the Court in time, he might even have a say in the pending abortion rights case this term that will determine whether Congress can ban a certain type of late-term abortion procedure.

Alito also could change the Court's fragile balance when it comes to Establishment Clause cases involving religious symbols on public property. He's already on the record as favoring a weakened wall between church and state.

Moreover, he is on the record as favoring a strong executive branch at the expense of both Congress and the judiciary (and many would argue "civil liberties"), which relates directly to the current administration's stance toward the legal war on terror.

If right-wing interest groups were to offer to their constituents a pin-up poster for "Most Promising Justice," Judge Alito's glamour shot would be a best-seller.

And that's precisely why his candidacy for the Court is going to generate the political and legal donnybrook we never saw with the Roberts' or Miers' nominations.

Roberts, for the most part, got a pass because he had carefully avoided taking polemic positions during his brief tenure as a federal appeals court judge. Miers never got a chance to get a pass because she was unable even to make it to her hearing.

Alito is strong enough to get a hearing but not strong enough to warrant the deference the Senate Judiciary Committee, and the Senate as a whole, offered Roberts. If you are looking to the radar screen for signs of dark skies and bluster ahead, the Alito nomination is simply the perfect storm. A looming Category 5, nasty, spitting, roiling, barking dogfight.

The Alito nomination confirms that President Bush believes even from a weakened position that he can win a Senate fight with Democrats and moderate Republicans by energizing his conservative base.

Those loud voices on the right whom were so negative about Miers, and whom were even a bit lukewarm about Roberts, embrace Alito. He has delivered the goods for them from his current post for half a generation and there is very little reason to think that he would move to the center upon reaching the High Court.

In fact, the Alito nomination is so secure with the President's base that both he and Alito spent virtually no time during their "introduction" Monday morning talking about the judge's judicial philosophy. Alito's supporters already know his philosophy and so do his detractors. It's those in the middle who are going to be targeted between now and the end of year.

From the White House, then, expect the focus of this nomination to continue to be upon Judge Alito's marvelous life story, his long dedication to public service, his career as a successful prosecutor and then as member of the solicitor general's office.

The idea will be to personalize and humanize Alito, to give context to the sinister caricature that his opponents will shape of him, in order to reassure people outside of Washington that the judge is not a nasty jurist like Justice Antonin Scalia, the guy everyone thinks of when they think of Alito.

Alito no doubt will help this effort. Unlike Scalia, he is affable and likely to charm many of the Senators he now has to meet and greet.

From Senate Democrats, meanwhile, expect the focus to be upon Judge Alito's voting record, the argument that he is too ideologically conservative to get the top job, and the idea that he is no suitable replacement for the moderately conservative Justice O'Connor.

This argument posits that while the William Rehnquist-for-John Roberts swap was pretty much even-steven because the two shared a common judicial philosophy, an O'Connor-for-Alito trade would turn the Court markedly to the right for many, many years to come.

Of course, a president has a right to shape the court in his political direction. The questions for this confirmation process are whether this president has the political ability to do so and whether his hoped-for reshaping makes a majority of Americans uneasy.

Indeed, even before the judge was officially nominated by the President, some of Alito's political detractors already were talking about having Senate Democrats use that filibuster option we heard so much about this past spring.

That unfortunate scenario was never a real possibility during the Roberts' confirmation process and Senate Democrats seemed likely to take their chances with Harriet Miers. But it's on the table now. And its use (or not) will depend entirely upon which party — upon which group of special interest lobbyists — succeeds in imprinting their perception of Alito onto America's mind's eye.

Want to get a feel for how things are going as this circus gears up? Listen to what Senate Judiciary Committee Chairman Arlen Specter says about the nominee after they meet and discuss the law.

Specter is a pro-choice Republican who talked during the Roberts' hearing about Roe v. Wade being "super duper" binding precedent. Also listen to what Maine's two moderate Republican senators say. They are part of that Gang of 14 that generated the Senate compromise this spring that avoided a filibuster showdown then. Listen to Sen. Lindsay Graham, the sensible sound byte machine, who often is ahead of the curve when it comes to predicting outcomes.

So this winter we get the big fight we all thought we would get this summer or fall. It's going to be messy and ugly and disconcerting and it's hard to see or say now how it all ends.

By Andrew Cohen