Justice Alito.

Byline: The Register-Guard

This newspaper supported Samuel Alito's confirmation to the U.S. Supreme Court on grounds that presidents are expected to appoint judges whose ideas are congruent to their own, and that the Senate Judiciary Committee's hearings uncovered no serious defects in the nominee's qualifications. The Senate saw Alito in the same light, voting 58-42 Tuesday to confirm him as the nation's 110th justice.

An equally significant vote came a day earlier, when 72 senators voted to end a filibuster of Alito's nomination. Among them were 15 Democrats who would later vote against Alito's confirmation. With their votes these Democrats said that even though they opposed Alito, they did not believe his nomination presented "extraordinary circumstances" justifying a filibuster.

Just what kinds of circumstances are extraordinary has not been defined. The standard was devised by 14 senators - Democrats and Republicans - last year to avert an escalation of the partisan war over judicial nominations. The filibuster, which can be ended only by a vote of 60 senators, has become the Democratic minority's last resort in attempts to block judicial nominations. Senate Majority Leader Bill Frist had threatened to deploy the "nuclear option" by changing the rules to prevent filibusters. The "gang of 14" averted the confrontation by agreeing to support filibusters only in extraordinary circumstances.

Alito's nomination presented the first big test of the agreement, and it passed. Alito didn't win 60 votes. But a third of the Senate's Democrats saw a crucial distinction: Alito was a nominee they did not support, but they were unwilling to prevent their colleagues from supporting him.

The failure of the Alito filibuster led some to declare the filibuster dead. In fact, it may be more useful than before. Democrats have proved they will allow a vote for a nominee that nearly all of them found objectionable. If and when a filibuster is next employed, the credibility of the minority's claim of extraordinary circumstances will be enhanced.

It's possible that Alito will surprise supporters and detractors alike - justices often display undetected leanings after joining the court, or their judicial philosophies evolve in unexpected directions. Yet the most likely result of Tuesday's vote is that Alito will join the conservative wing of the Supreme Court, providing a crucial fifth vote in many cases. With the substitution of Alito for retiring Justice Sandra Day O'Connor, the court's center of gravity will shift to the right.

Denying confirmation to Alito would not have prevented that shift. President Bush promised to appoint conservatives to the bench. If Alito had been rejected, the president would have forwarded another nominee with a similar perspective. Bush could not do otherwise without breaking faith with his supporters.

The filibuster vote showed that many Democratic senators understand that the direction of the court is decided in presidential elections, and that the power of the filibuster should be employed to block only the most disastrous of nominees. Alito's appointment will become part of the record of the president and his party, and if he tips the court's balance in ways people don't like, the remedy is at the ballot box.