Key figures: Samuel Alito Jr., George W. Bush, Sandra Day O’Connor, Harriet Miers, Harry Reid, Arlen Specter, Patrick Leahy
The O’Connor Vacancy
On July 1, 2005, Justice Sandra Day O’Connor — the first woman ever appointed to the Supreme Court and the decisive swing vote on dozens of landmark rulings — announced her retirement effective upon the confirmation of her successor. O’Connor’s departure opened the most consequential vacancy on the Court since Ruth Bader Ginsburg’s 1993 appointment. Because O’Connor had repeatedly cast the deciding vote in 5–4 decisions on abortion, affirmative action, and religious freedom, her successor would reshape the Court’s balance, not merely add to it.
President Bush moved quickly. On September 6, 2005, he elevated D.C. Circuit Judge John G. Roberts Jr. — originally nominated to fill O’Connor’s seat — to the Chief Justice vacancy created by William Rehnquist’s death on September 3. Roberts was confirmed 78–22 on September 29, 2005. The O’Connor seat now required a fresh nominee.
The Harriet Miers Detour
On October 3, 2005, President Bush stunned Washington by nominating Harriet Miers — his White House Counsel and personal attorney — to replace O’Connor. Miers had never served as a judge and had no public record of constitutional jurisprudence. The nomination drew immediate fire from an unexpected quarter: conservative legal scholars and Republican senators who had spent years building the Federalist Society’s bench and wanted a nominee with a proven originalist record. Weekly Standard editor William Kristol called the pick “a failure of nerve,” and former Reagan official Bruce Fein warned the Senate to reject her.
Democrats attacked from the other direction, citing Miers’s close personal relationship with Bush as disqualifying cronyism — a charge especially resonant days after Hurricane Katrina had exposed the consequences of “heckuva job” appointments. After a disastrous and widely mocked questionnaire submission to the Judiciary Committee, Miers withdrew on October 27, 2005, marking one of the rare instances of a presidential nominee collapsing before formal hearings began.
Alito’s Nomination
Four days later, on October 31, 2005, President Bush nominated U.S. Court of Appeals Judge Samuel Anthony Alito Jr. to fill the O’Connor vacancy. Alito, 55, had served on the Third Circuit since 1990 — appointed by President George H.W. Bush — and had authored over 300 opinions in fifteen years on the bench. His record was extensive and unambiguous: he had voted to uphold a Pennsylvania law requiring married women to notify their husbands before obtaining an abortion (Planned Parenthood v. Casey, 1991 Third Circuit panel), dissented in favor of police officers in excessive-force cases, and written opinions limiting the scope of the Family and Medical Leave Act.
Alito quickly earned the nickname “Scalito” in the press — a portmanteau referencing Justice Antonin Scalia — though Alito’s temperament in oral argument was widely described as quieter and more methodical than Scalia’s combativeness.
Judicial Philosophy
Alito was a committed textualist and originalist, approaching constitutional interpretation through the text and historical understanding of provisions at the time of their adoption. Unlike some nominees who cultivated studied ambiguity about their legal views, Alito’s Third Circuit tenure left a traceable paper trail on virtually every major constitutional question. His 1985 job application to the Justice Department stated that he was “particularly proud” of his work arguing that “the Constitution does not protect a right to an abortion” — a document that became central to Democratic opposition during hearings.
Confirmation Battle
The Judiciary Committee opened confirmation hearings on January 9, 2006, chaired by Senator Arlen Specter (R-PA). Alito appeared before the committee over four days, answering — or deferring — questions from all eighteen senators. Following the precedent set by Robert Bork’s disastrous 1987 hearings, modern nominees routinely declined to pre-commit on specific cases; Alito told the committee he would approach every case with an “open mind” and evaluate precedents under stare decisis. On abortion, he acknowledged that Roe v. Wade was settled precedent but declined to call it “super precedent” immune from reconsideration.
The hearing’s most dramatic moment came when Senator Lindsey Graham (R-SC) asked Alito whether he was “a bigot.” Alito’s wife, Martha-Ann Bomgardner, broke into tears and left the room — an image that dominated news coverage and shifted media narrative away from Democratic questioning on abortion and executive power. Democratic senators Ted Kennedy and Joe Biden faced criticism for lengthy speeches that left little time for follow-up.
The Judiciary Committee voted 10–8 along strict party lines on January 24, 2006, recommending confirmation. The full Senate confirmed Alito 58–42 on January 31, 2006, with only four Democrats — Robert Byrd (D-WV), Tim Johnson (D-SD), Kent Conrad (D-ND), and Ben Nelson (D-NE) — crossing party lines to vote in favor. A cloture vote the day before had broken a Democratic filibuster attempt 72–25. With only four members of the opposing party in support, Alito’s confirmation was among the most closely divided along party lines in modern Supreme Court history — a sharper partisan split than the 52–48 confirmation of Clarence Thomas in 1991, which drew eleven Democratic votes.
Significance
Alito’s confirmation completed a decisive transformation of the Court. Together with Chief Justice Roberts, confirmed in September, Bush had placed two solidly conservative justices on the bench in a single year. The pair — paired with Scalia, Thomas, and eventually Kennedy — formed a five-justice conservative bloc that would prove durable. Alito’s replacement of O’Connor was particularly consequential: where O’Connor’s swing-vote jurisprudence had produced narrow, fact-specific majorities, Alito reliably joined the conservative bloc and frequently authored its reasoning.
By the 2006–07 term, the Court signaled its new direction. In Gonzales v. Carhart (2007), Alito joined the majority upholding the federal Partial-Birth Abortion Ban Act — a law O’Connor had voted to strike down in similar form. In Ledbetter v. Goodyear (2007), Alito wrote the majority opinion restricting pay-discrimination claims, which Congress reversed with the Lilly Ledbetter Fair Pay Act of 2009.
The 2005 confirmation battle set the template for all subsequent Supreme Court fights: ideology, not qualifications, would determine Senate votes; nominees would decline to preview their legal views; and outside advocacy organizations would mobilize hundreds of millions of dollars on both sides. Sixteen years after his confirmation, Alito authored the Dobbs v. Jackson Women’s Health Organization majority opinion (2022), directly overruling Roe v. Wade — reflecting the concerns Democrats had raised during his 2006 hearings.
Related Topics
- John Roberts confirmed as Chief Justice (2005) — Bush’s first 2005 appointment, confirmed weeks before the Alito nomination
- George W. Bush’s 2005 second-term agenda — the judicial-nominations push that reshaped the Court
- Terri Schiavo case (2005) — a parallel 2005 flashpoint over the courts and social conservatism
- Saddam Hussein trial begins (2005) — another major legal proceeding opening in late October 2005