Edward M. Kennedy, the 73-year-old liberal lion of the Senate, did not so much roar as huff and puff Tuesday, as he faced Judge Samuel Alito. He and other Democrats on the Senate Judiciary Committee who had spent weeks preparing for Alito’s Supreme Court confirmation hearing seemed to be shooting blanks at President Bush’s nominee.
Sen. Kennedy appeared to have lost his fastball in the 19 years since he eviscerated nominee Robert Bork. But Alito is a deceptively more difficult target. While Bork appeared a flamboyant scholar eager to expound his worldview, Alito came over as a cautious lawyer dealing in fine print and footnotes. Republican senators had feared the nominee’s uninspiring style would undo him, but they now feel it actually carried the day.
Failure to make a direct hit on Alito suggests a transcendent defeat for the Democratic judicial confirmation strategy crafted by Kennedy. It did not block all conservatives for appellate courts and failed to dissuade Bush from naming conservatives to the Supreme Court. To stop Alito required an auto wreck at this week’s hearings, which always was unlikely considering his style.
It was not that Teddy Kennedy did not try his best on Tuesday. His legal aide, James Flug (an expert on judicial assassination), had stocked the senator with multiple scripts. But Kennedy seemed bogged down with his material, flitting from one subject to another, without focus. That seemed a generic problem for most Democratic senators. Sen. Joseph Biden spent 11 minutes in the preamble before he got around to his opening question.
Republicans were amused at Democrats stressing Alito’s membership in the Concerned Alumni of Princeton (CAP) because of the organization’s alleged fight against admission to the university of women and African-Americans. Alito testified he could barely remember his connection with CAP, but said he joined to protest Princeton’s expulsion of the ROTC from campus.
What had worried Alito’s strategists in advance was a concerted attack on his civil rights decisions that might erode support among moderate Republicans. But Alito’s bland, lawyerly style prevailed when Biden raised the 1995 decision on a lawsuit by Barbara Sheridan against the DuPont Co. charging sex discrimination. Alito was outvoted 11 to one when the court ruled in Sheridan’s favor. “After listening to Alito,” said Republican Sen. Lindsey Graham, “you think the other 11 judges missed the boat.”
Alito’s dry style encouraged the pretense that the Judiciary Committee Democrats were engaged in a serious inquiry into the nominee’s judicial philosophy. Actually, liberal special interest groups demanded a response to this nominee that was more vigorous than the passive opposition to John Roberts as chief justice. As a result, the only Democratic senator who now can be counted on to vote for Alito is Sen. Ben Nelson, running for re-election this year in the very red state of Nebraska.
In this week’s hearing, Biden typically did not disguise the political stakes involved in this confirmation process: the conservative Alito replacing Justice Sandra Day O’Connor, a swing voter who usually has swung left. Biden asserted that O’Connor was “the fulcrum on an evenly divided court,” so that filling this seat is more important than Roberts replacing Chief Justice William Rehnquist.
Sens. Charles Schumer and Richard Durbin, two of the Senate’s most partisan Democrats, have tried this week to escalate the intensity level of the hearings by asserting that the burden of proof was on Alito to show that he deserves to be on the Supreme Court. Just how he was supposed to do that was not spelled out. But that extraordinary heightening of the standards of confirmation would relieve the senatorial inquisitors from responsibility for measuring a nominee’s fitness.
Schumer, at the end of the committee table in seniority, had to spend the entire day Tuesday watching his colleagues shooting blanks before he got his chance to fire the real thing. Schumer was well prepared, with a senatorial third degree of Alito demanding repeatedly to know whether he believed in a constitutional protection of abortion. That question led off a harsh, carefully scripted interrogation of the nominee. It made Chuck Schumer look mean and nasty, but that hardly derailed Sam Alito.
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