Some Democrats think they have found Judge Samuel Alito’s Achilles’ heel. In their opening statements and first day of questioning, Senators Patrick Leahy, Ted Kennedy, Chuck Schumer, and Dick Durbin have tried to portray Alito as a tool of the powerful. They describe him as a man always willing to side with the strong over the weak, the rich against the poor, one who favors whites over blacks and other minorities. They are hoping the theme will resonate in a way that simply attacking him as anti-abortion won’t. It is becoming harder and harder to convince most Americans that an absolute right to abortion through nine months of pregnancy is the sine qua non of American freedom, so Democrats are having to expand their line of assault. And they are hoping that the president’s less-than-stellar poll numbers and the anticipated Republican fallout from the Jack Abramoff investigation will make it easier for Democrats to sustain a filibuster, which is the only way they can defeat Alito.
The problem is Alito doesn’t much resemble the caricature the Democrats have drawn. There is certainly nothing in his background that would make him insensitive, much less hostile, to the interests of ordinary working people. He grew up solidly middle class, but not privileged, the son of a teacher and a civil servant (who happened to be an immigrant). Nor do Alito’s opinions suggest any animus to the less powerful or fortunate. His record on employment cases, for example, tracks the facts of the individual cases rather than any ideological agenda. In one case involving a group of Filipino seamen who worked on Kuwaiti oil tankers in the Persian Gulf which were temporarily re-flagged as American vessels during the first Gulf War, Alito was the sole vote on the 3rd Circuit to support the sailors’ claim that they were entitled to be paid the minimum wage under U.S. law. In other cases, Alito opposed racial profiling and was sometimes more expansive than his colleagues in his reading of plaintiffs’ right to sue for discrimination.
The first couple of days of hearings have made it clear that Alito won’t have the cakewalk Chief Justice John Roberts enjoyed during his confirmation last fall. On Sunday, Sen. Schumer (D-N.Y.) warned that "If [Alito] continuously, given his previous record, refused to answer questions and hid behind ‘I can’t answer this because it might come before me,’ it would increase the chances of a filibuster." And Sen. Dianne Feinstein (D-Calif.) has said she would likely filibuster the nomination if she believed Alito would overturn Roe v. Wade if confirmed. Even ranking Democrat Sen. Patrick Leahy (Vt.), who voted for confirming Supreme Court Chief Justice Roberts, was willing to distort Alito’s record in his opening statement by falsely accusing the nominee of opposing the principle of one man, one vote. But it is on the issue of executive power that Democrats will try to score their most effective blows.
Using the Alito hearings to further their attack on President Bush, the Democrats want the nominee to weigh in on the current controversy over the president’s authorizing the surveillance of communications between suspected terrorists abroad and persons in the United States without first obtaining a warrant from the Foreign Surveillance Intelligence Act court (FSIA). Since this issue is likely to come before the Supreme Court should Judge Alito be confirmed, it would be totally inappropriate for him to say anything at this point, but that won’t stop the Democrats from pressing their case and threatening a filibuster if he doesn’t oblige.
Still, unless Alito himself withers under repeated questioning — not likely for a judge with 15 years’ experience on one of the nation’s highest courts — the Democrats risk looking like partisan obstructionists if they try to block an up-or-down vote on the nomination. Polls suggest most Americans favor Alito’s confirmation, but you would never guess that from the Democrats’ performance at the hearings so far. They get away with it because they’re not forced to pay the price at the only poll that counts on Election Day.