Fighting Alito

Michael Barone argues the Democrats should and will not fight too hard against Alito. I think they would be stupid to fight. From what I've read, Alito seems a classic, conventional conservative judge. This means he applies and interprets the law rather than creating it. Take his rulings on abortion cases. Many will point to Casey and his dissent there, yet on several other cases he voted contrary to how one would expect a pro-lifer to vote. For example, he voted to strike down bans on partial birth abortion. Why? Because the Supreme Court's rulings were clear on the subject, and the ban in question did not comply with the rules. So, regardless of what his personal feelings might be, he applied the law.

This is in contrast to even more conservative judges the president could have chosen, who would be much more activist, disregarding the law and making it the way they feel it should be.

If they choose to fight Alito, they risk resorting to the filibuster which will trigger the nuclear option, which ultimately is a bad move for both parties. The president could get the opportunity before he leaves office to appoint a third justice, and Democrats would not be happy if they were impotent to fight it. If, by some miracle, they chose to fight and avoided the nuclear option and somehow actually won, Bush would likely come back with an even more conservative judge, like Jance Rogers Brown, who would be more activist than Alito is.

In the end, Alito is really the best they can hope for. A well-qualified judge who is not a judicial activist, but will respect and apply the law. In this way, he is really much more like Roberts.