Alito's circuitous route to the Supreme Court
What if Harriet Miers had taken Sandra Day O’Connor’s swing seat in 2006 instead of Samuel Alito?
Justice Harry Blackmun teasingly referred to himself and his colleague Justice Anthony Kennedy as “Old #3.” The label derived from the fact that both had been the third choice of their respective appointing presidents, Richard Nixon and Ronald Reagan, when chosen to serve on the U.S. Supreme Court.
By Blackmun’s counting, Justice Samuel Alito might be viewed as “Old #2½.” Despite making President George W. Bush’s short list to replace retiring Sandra Day O’Connor in 2005, Alito lost out to John Roberts. When Roberts’s mentor, Chief Justice William Rehnquist, died a few weeks later, Bush immediately named Roberts to replace him. The president then turned to his Texas friend and White House counsel, Harriet Miers. When she withdrew for a host of reasons, Bush finally settled on Alito.
With Justice Alito making headlines after his leaked draft opinion appears poised to overturn the 1973 Roe v. Wade precedent that established a right to abortion, it is an intriguing exercise in alternative history to examine his circuitous route to the nation’s highest court.
What if Miers had taken O’Connor’s swing seat in 2006 instead of Alito? Would the Supreme Court have suffered the recent damaging breach of its vaunted confidentiality that threatens to upend Americans’ trust in the “Third Branch”? Would Roe’s historic precedent even be at risk?