A Fight with a Twist

By Massimo Calabresi/Washington

Ever get a gift that looks beautiful but comes with a long list of special-care instructions? That's what opponents of Supreme Court nominee Judge Samuel Alito got last week when his 1985 application for a job in the Reagan Justice Department surfaced in Washington. In it, Alito espoused the idea that "the Constitution does not protect a right to an abortion." With a solid majority of Americans in favor of legalized abortion, Alito's opponents thought they had finally found their cudgel. But the Senate Democrats, at least, did not seem prepared yet to use it bluntly: for Alito's nomination they have settled on a strategy that doesn't take abortion head on. "The tactic is going to be to frame it as a debate over broader rights, including privacy, civil rights and women's rights," says Jim Manley, the spokesman for Senate Democratic leader Harry Reid. This will avoid, Manley says, "the divisive debate over the word itself."

Democrats are wary because the majority of Americans are not dogmatic on the issue. While most want abortion to remain legal, they also support restraints on its use, and politicians who fail to strike a credible balance pay a price (think John Kerry). You could already see the Senate Democrats' cautious approach by observing their behavior last week. In a series of speeches Wednesday, Reid and Senators Ted Kennedy and Charles Schumer spoke on Alito and the memo, but danced around abortion. On Thursday, the Senate's top five Democrats held a 40-min. strategy session in the anteroom of Reid's office with about 15 representatives of outside groups opposed to Alito's nomination. Abortion may have been on everyone's mind, but it was barely mentioned.

Even if the pro-choice case against Alito will be framed delicately, it is a surprise twist in the nomination that a battle is shaping up at all. A few weeks ago, it looked as if Alito might sail through the Senate as easily as Chief Justice John Roberts did last summer. But that changed with Bush's political fortunes. According to Democratic pollster Geoff Garin, when the President was riding high in the polls in January '05, 53% of the public said they had confidence in him to nominate good judges; now only 42% feel that way. "A President at 37% approval should expect fights at every turn," says centrist Democratic consultant Bruce Reed.

The Senate's more subtle pro-choice campaign will be tricky to pull off because it won't mesh with the high-volume voices of outside groups opposed to the nomination. A national coalition including the country's two largest pro-choice groups, NARAL Pro-Choice America and Planned Parenthood, launched ads in Rhode Island, Maine and on national cable last week. NARAL has launched a grassroots campaign among 27 affiliates around the country timed for the Senate's Thanksgiving recess that will target members by requesting meetings, writing letters to editors and circulating petitions.

Some Republicans are worried that the Democrats could win that kind of straight-up fight on abortion. Congressman Tom Davis of Virginia, whose previous leadership job was to raise money for Republican House members up for re-election, broke with the White House message and declared last week that overturning Roe v. Wade could "produce a political backlash" among crucial suburban voters. As for a general attack on Alito, the numbers seem to break the Democrats' way. Pollster Garin, in a survey conducted before the 1985 memo came out, found that only 43% of those polled said they thought the Senate should vote in favor of Alito, compared to 59% for Roberts at the same point in his nomination process.

The Democratic strategy of couching abortion in other rights issues may be put to the test as early as next week when the Supreme Court will hear the case of Ayotte v. Planned Parenthood, in which a New Hampshire law requiring doctors to notify a parent at least 48 hours before performing an abortion for a teenager is being challenged by a pro-choice group. It will put front and center the basic issue of whether Roe protects the health and safety of the mother. It will also highlight the pivotal role in abortion cases of swing voter Sandra Day O'Connor, whom Alito would replace.

With reporting by JAMES CARNEY/WASHINGTON, Karen Tumulty/Washington