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After President Bush bungled by initially nominating White House counsel Harriet Miers to replace Sandra Day O'Connor, he found firmer footing among conservatives with his choice of Samuel Alito, who served on the U.S. Court of Appeals for the Third Circuit, based in Philadelphia. The Times questioned if Bush could get another conservative nominee through, weakened as he was by Hurricane Katrina, the indictment of top Cheney aide Lewis Libby in the Valerie Plame leak probe, and a war going poorly in Iraq.
Samuel Alito's nomination set off the fierce lobbying war that had been absent from the Roberts hearings, as the Times and the left realized replacing O'Connor with Alito could mean a Supreme Court shift to the right.
Even before his nomination by Bush on October 29, 2005, David Kirkpatrick and Elisabeth Bumiller wrote “Judge Alito is a favorite of conservatives and a likely target of liberal attacks.”
The first profile of Alito, on November 1, 2005, by Neil Lewis and Scott Shane was respectful but left no doubt of Alito's “conservative” ideology. “He has cloaked his formidable intellect in modesty....While Judge Alito, 55, has built a reputation for decency, he has also compiled a conservative record...Judge Alito's jurisprudence has been methodical, cautious, respectful of precedent and solidly conservative, legal scholars said....Like Justice Scalia, Judge Alito is an Italian-American from Trenton, whose jurisprudence is indisputably conservative....staunch conservative.”
The lead story that day by Elisabeth Bumiller and Carl Hulse opened: “Ivy league-educated appeals court judge with a conservative record on abortion,” also calling Alito “a methodical and cautious jurist” while continuing to emphasize his “bona fide conservative credentials.” A same-day story by Todd Purdum, “Potentially, the First Shot in All-Out Ideological War,” emphasized Alito's “clear-cut conservative views,” particularly abortion, and brought up the fact that a Democratic filibuster of the nomination was “very much on the table.” A November 4, 2005 story by Scott Shane mentioned Alito's “staunchly conservative views.”
A November 15 story David Kirkpatrick tried to raise a fuss over a 1985 job application Alito submitted during the Reagan administration, and giving space for Sen. Patrick Leahy to slam Alito as being of the “party's extreme right wing.” The next day, Kirkpatrick and Sheryl Gay Stolberg announced that “the document...could complicate Judge Alito's nomination.”
It failed, but another memo surfaced which let the Times' David Kirkpatrick make hay in a December 1 story headlined: “Alito File Shows Strategy To Curb Abortion Ruling.” Democrats quickly pounced, as Sheryl Gay Stolberg reported December 3 that Alito was “Seeking to tamp down a furor over his views on abortion rights....”
Having never shown the slightest concern about Ruth Bader Ginsburg's pro-abortion absolutism, the Times devoted much energy to Alito's 1985 statement on an application that “the Constitution does not protect a right to an abortion.”
On January 9, 2006, Kirkpatrick made ideology explicit, reporting that for Alito's former colleagues, his ascension “would be the high point of a conservative revolution in the legal establishment: an effort over several decades to seed the federal courts with jurists holding a narrower interpretation of the Constitution's application to abortion rights, civil rights, the rights of criminal defendants and the scope of federal power.”
As hearings finally began, Richard Stevenson and Neil Lewis predicted tough sledding for Alito in a January 10 lead story: “Mr. Bush has been weakened by the failed nomination of Harriet E. Miers to the Supreme Court, the continued bloodshed in Iraq and the corruption inquiries that have ensnared Republican lobbyists and members of Congress.” However, reporters Adam Liptak and Adam Nagourney gave Alito a fair shake in a January 11 story after Alito's first day of testimony: “But he came across as far less ideological than Democrats have suggested, undercutting their efforts to stir public opposition by portraying his writing as outside the American mainstream.”
The Times was puzzled that liberal criticism of Alito wasn't penetrating. On January 15, after Alito had successfully navigated his confirmation hearings, Nagourney, Stevenson, and Lewis wondered along with the Democrats how “a nominee with such clear conservative views -- in particular a written record of opposition to abortion rights -- appeared to be stirring little opposition. David Kirkpatrick wrote on February 1 that Alito's confirmation, by a close 58-42 vote, was “expected to tilt the balance of the court to the right on matters like abortion, affirmative action, and the death penalty.”
The court fight cooled off after Alito, with no openings on the Supreme Court for three years. One speculative piece stands out from that interregnum: Neil Lewis's amazingly slanted May 28, 2008 piece comparing Republican John McCain's potential Supreme Court nominations with Obama's.
Lewis threw tons of "conservative" labels (18 in all in a 1,400-word story) on the McCain camp but there was not a single "liberal" to be found to describe Obama's potential picks. Lewis implied that Republicans were ignorant of the nuances of the law, puppets of conservative lawyers, as opposed to Obama, who had a "long and deep interest in the courts and the law," a charge he backed up by quoting unlabeled liberal law professor and Obama adviser Cass Sunstein.