Exclusive 'Earthy' Alito Hearings Contrast Roberts'

January 17, 2006
Washington, D.C.
Vol. 41, No. 2a

To: Our Readers

  • Alito excels in hearings as Democrats fail to land punches
  • Real battle expected to be fought over Bush’s next court pick
  • Blunt and Boehner begin with the lead for majority leader, but Shadegg offers the chance for reform at a time when it may be politically important
  • California’s GOP congressmen endorse Bilbray in the April 11 race to replace Cunningham

Supreme Court

Alito Hearings: The confirmation hearings on Judge Samuel Alito’s nomination to the Supreme Court were striking for their dissimilarity from last year’s confirmation hearings for Chief Justice John Roberts.

1) Alito lacked the rhetorical polish of Roberts, but matched his intellectual rigor. His style was earthy and solid, well suited to his career as an appeals judge who has labored in the trenches for 15 years. His calm explanations of the law were dull at times, but for the most part, he was clear and he did not equivocate.

2) Alito went well beyond the minimum requirements of the so-called "Ginsburg Standard" of giving few hints on his judicial philosophy — a standard to which Roberts strictly adhered. Alito seldom refused to answer a question on case law. Part of the difference is due to the two men’s dissimilar professional history. Alito has rendered opinions on so many topics that he could discuss many more of them than Roberts without prejudicing his own potential decisions on the Supreme Court.

3) Democrats on the committee were flustered as they failed to lay a glove on the nominee. Alito refused to fall into rhetorical traps laid by the better questioners, such as Charles Schumer (D-N.Y.), Dick Durbin (D-Ill.), and Russ Feingold (D-Wis.), on the issues of abortion and executive power. Outside the Senate, the Left is playing down the abortion issue and playing up the issue of the so-called "unitary executive" — actually a bland legal term referring to the structure of organization within the executive branch, but now the stuff of crazy conspiracy theories, thanks to the Alito hearings.

4) The failure to crack Alito on the issue of judicial philosophy left Democrats with little to grasp. Democrats were forced to retreat to two rather weak attacks on the nominee’s integrity. Alito’s so-called Vanguard problem pertained to his initial failure to recuse himself in a 2002 small-dollar lawsuit in which the company that manages his mutual funds (not a company in which he had invested) came up as a third party. This went nowhere. Alito’s membership in Concerned Alumni of Princeton (CAP) appeared to be a slightly more salient issue, but Alito came out well after much bluster over a politically incorrect article discovered in the group’s publication from a decade after his graduation. In the end, neither issue had legs.

5) Another striking fact of the Alito hearings was the total absence of abortion groups from the media. The National Organization of Women (NOW) and the National Abortion Rights Action League (NARAL) failed to make a public show, as they had done daily during the Roberts hearings. This was part of a deliberate strategy of sending volunteers instead to talk directly to senators, but it resulted in the groups’ getting much less media attention. NOW President Kim Gandy was spotted at one point trying to get the attention of reporters outside the hearing room.

6) These and other left-wing judicial groups complained that Democrats were too easy on Alito. Actually, there was little that Judiciary Democrats could do, short of verbal abuse, to squash a squeaky-clean and intellectually robust nominee such as Alito.

7) Despite the fears conservatives have had about his ascendancy as judiciary chairman, Sen. Arlen Specter (R-Pa.) showed in the Alito hearings just how important an ally he can be. Specter deftly turned away an attempt by Sen. Edward M. Kennedy (D-Mass.) to delay hearings for a fishing expedition into old CAP records. When Kennedy demanded to subpoena the documents, Specter had his staff quickly retrieve and review them, only to find no mentions of Alito whatsoever. Had he wanted, Specter could have let the Democrats toy with Alito for up to a week, possibly endangering his nomination.

8) However, Specter was unable to keep Democrats from invoking their right to delay the vote by a week, even though they had given their word that they would allow a floor vote on January 20 in exchange for Specter’s moving the hearings to January. In retaliation, Senate Majority Leader Bill Frist (R-Tenn.) cancelled a week of the Senate’s vacation and scheduled debate on the nominee beginning January 25.

9) The Alito nomination, a last resort for President Bush after the miserable failure of his first pick, White House Counsel Harriet Miers, may have opened the way for a different approach to Supreme Court nominees for conservatives in the future. In the past, Republican presidents have felt the need to serve up "stealth nominees" whose views are unknown. Alito did not fit this mold, and his superb performance in the hearings suggests that such stealthy games are not necessary, so long as charges cannot be dredged up about a nominee’s personal life. Moreover, these hearings explode the myth that a judge with conservative views needs to approach the witness stand with trepidation and obfuscate as much as possible, or else be "Borked."

10) With a long track record of judicial decisions, Alito had very little to hide, and he clearly felt no need to do so. Unlike Roberts, who was relatively new to the bench, Alito did not hide behind his employment in the Reagan Administration when he was asked about a 1985 memorandum stating his pro-life views. Alito was simply not cowed by Democrats’ repeated questioning on abortion — the critical issue — or executive power, which will be a big political issue for Democrats in 2006.

11) Alito’s confirmation appears assured, particularly now that Sen. Dianne Feinstein (D-Calif.) has said she will not participate in a filibuster against his nomination, even though she plans to vote against him. The real battle appears to have been kicked down the road, to the next Supreme Court retirement. Democrats have to hope that it comes after they pick up at least two seats in the Senate this fall.

12) By the same token, Republicans are eager to make sure Alito gets 60 votes or more, exceeding the filibuster threshold. If he does not, Bush might become timid in his selection of the next nominee, as the numbers may no longer be there for the filibuster-breaking "nuclear option."

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