Add to that the fact that Alito is up to replace swing vote Justice Sandra Day O’Connor whereas conservative Roberts replaced the late conservative William Rehnquist and fireworks are in the offing.
With a 55-vote Republican majority in the Senate, confirmation still appears likely, but insiders on both sides late last week predicted Alito will have a challenging time before the chamber, and opponents allowed themselves to be optimistic that Alito could be roughed up badly, if not toppled.
“You can’t compete with the holidays, but suddenly everything came to life this week,” says Eleanor Smeal, president of the Feminist Majority Foundation and a veteran campaigner against Republican judicial nominees. “The whole atmosphere has changed. This is not last September,” she adds, alluding to Bush’s troubles since Roberts sailed through by a 78-22 vote on Sept. 29.
“Alito is not Sandra Day O’Connor, and he’s not John Roberts, who was coronated by the Senate. Alito is going to have to fight for his life,” says David Bookbinder, whose Sierra Club came out against Alito last week, marking the first time the environmental group has opposed a high court nominee since Robert Bork in 1987. Alito’s views on executive power and the commerce clause pose real threats to environmental advances, Bookbinder says, and could help push the number of senators voting against Alito up over 40, if not all the way to 51.
For their part, Alito supporters like Curt Levey are aware that “he will have a rougher go of it than Roberts did,” but in the end, “nothing that has been thrown at him has really stuck.” Levey is general counsel of the pro-Alito Committee for Justice.
Former Bush Justice Department official Viet Dinh is also confident that Alito will be confirmed based on his “long record of evenhanded application of the law,” though he acknowledges that “his style is not to hit curveballs out of the ballpark.”
Rutgers University political scientist Ross Baker forecasts “an engrossing week of political theater, even if the outcome is foreordained.”
Here, then, is a field guide to the Alito hearings:
The style thing. Nothing in the Constitution requires a Supreme Court nominee to be telegenic, but style and aplomb have been important factors ever since Reagan nominee Bork displayed neither quality and got clobbered. Roberts’ movie-star looks raise the bar even higher for Alito.
That is why Alito’s advocates try at every turn to lower expectations about his personal charisma. In a recent C-SPAN interview, longtime friend Carter Phillips who said that Alito asked him to speak on his behalf allowed that Alito is “not the most comfortable one-on-one conversationalist in the world.” And Alito supporter Levey of the Committee for Justice says the nominee comes across as “a little mousy.” Those who are familiar with the murder boards (or rehearsals) that Alito has gone through to prepare for the hearings say the same thing.
So how does an awkward man who seems to have little need to hear his own voice handle three days of televised testimony? Sidley Austin Brown & Wood partner Phillips and others note that despite his reticence one-on-one, Alito was nimble and persuasive on his feet when he argued before the high court in the solicitor general’s office. If he can display that skill enough to keep the conversation going, his shy, even nerdy manner probably won’t hurt him. If he suddenly finds an eloquent voice and displays some humor, he might hit home runs after all. “Sam will be home free when his most ardent political opponent cannot resist genuinely sharing in Sam’s dry, laserlike humor,” says Douglas Kmiec, a Pepperdine University Law School professor who has known Alito for years.
Only if he appears unhelpful, evasive, or dismissive will Alito’s style become a negative. “Bork came across as combative and arrogant,” says Levey. “But that’s not Alito.”
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Executive power. Alito is Roman Catholic, but don’t be surprised if he is accused of being a Unitarian this week not of the Protestant sect, but an advocate of the theory of the “unitary executive.” In a November 2000 speech before the Federalist Society, Alito expounded on this theory, which holds that the Framers of the Constitution wanted all executive power to be in the hands of the president and not to be shared with administrative agencies or with Congress. The Framers advocated this approach not only for efficiency and accountability, he said, but “to balance the huge power of the legislature and the factions that may gain control of it.” In the wake of revelations about Bush administration domestic eavesdropping, Alito has also been taken to task for a 1984 memo he wrote in the solicitor general’s office suggesting that government officials deserved immunity from liability for authorizing illegal wiretaps.
In a rare untelevised media briefing Thursday, Sen. Edward Kennedy (D-Mass.) underscored the executive-power issue as one that looms large for him in the run-up to the Alito hearings: “Especially when we have a president who wants to stretch his powers to and beyond constitutional limits, we need judges who can be independent of the president and act to preserve the balance of powers that provides a strong and fair foundation for our free society.”
If this issue gains traction with the public and with Republicans some of whom, such as Senate Judiciary Chairman Arlen Specter (Pa.), are concerned about the erosion of congressional powers then it could spell trouble. But Alito might try to neutralize the issue by insisting that he cannot comment on separation-of-power questions that might come before him on the Court.
Sucking up. Alito supporters appear divided over how he should handle the recently released 1985 job application in which he sought a position in the Reagan Justice Department by stating, “I am and always have been a conservative.” That may be no surprise, but he went on to disparage abortion rights and rulings of Chief Justice Earl Warren’s Court on everything from criminal procedure to reapportionment. Civil rights advocates have picked up on the reapportionment issue in particular because the Warren Court’s “one man one vote” rulings helped end rural domination of Congress and led to the election of minorities in urban districts.
Some say that Alito can chalk the statements up to job-application hyperbole that can be expected from someone applying for a political position. “The best thing he can say is that he was sucking up,” says Rutgers’ Baker.
But Alito supporter Roger Pilon of the Cato Institute says, “He can’t back away from the 1985 statements, nor should he.”
Abortion. Before last week, Alito’s abortion views, as revealed in the 1985 memo and elsewhere, seemed likely to cause the most trouble at his hearings. But David Garrow, a Cambridge University professor and expert on the Court’s abortion jurisprudence, says that Alito will likely be able to defuse them. “I actually expect that the abortion part of the colloquies will be among the most scripted and predictable,” says Garrow, adding that Alito can pay homage to stare decisis and the Court’s 1992 decision in Planned Parenthood v. Casey, which upheld Roe v. Wade and overruled Alito’s own views as an appeals judge who supported a Pennsylvania law that restricted the right to an abortion. Garrow said that Alito can also explain away the 1985 memo as views expressed as an advocate and staff lawyer for the Reagan administration.
In the Vanguard. Alito’s failure to recuse himself as a judge on the U.S. Court of Appeals for the 3rd Circuit in cases involving Vanguard companies, when some of his money was in Vanguard mutual funds, is a nothingburger for most judicial ethics experts, since mutual fund investments create different interests from stock ownership.
But the issue has developed into a lingering low-grade fever for Alito because, whatever the merits, his opponents have cast it in the words of People For the American Way as “Judge Alito’s troubling credibility gap.” When he was confirmed as an appeals judge, in 1990, he promised the Senate he would recuse in Vanguard cases. Alito has offered various explanations for his lapse, and Democrats are sure to insist that he pick just one and convince them that he did not ignore or violate the Senate pledge. The lawyer for Shantee Maharaj, whose Vanguard-related case is at issue, will testify against Alito this week.
If Alito gets defensive about it, the issue could grow in importance, says Cambridge University’s Garrow. “If he’s going to get visibly angry, I’d expect that’s the context in which it would occur.”
Overall strategy. If Alito is dogged with questions about positions he took before joining the 3rd Circuit in 1990, says former Justice Department official Dinh, he should point to his judicial record instead. “He has to give some granularity to his views now and then,” he says. “But rather than focusing on stray comments that by their nature reflect his personal professional views, his record as a judge speaks for itself to show his evenhanded application of the law. And he is not going to back down on his views as a judge.”
But that is exactly what some opponents hope Alito does. “We don’t need to just talk about those memos. He has 15 years of decisions to defend, and he can’t not talk about them,” says Smeal of the Feminist Majority Foundation. “In so many of those cases, he was a minority voice. He is so far to the right of the mainstream. That is what he will have to explain.”
Tony Mauro can be contacted at [email protected].