Alito’s brief remarks, delivered without referring to notes and with few rhetorical flourishes, came at the end of a day in which Republican and Democratic senators foreshadowed the battle ahead over his nomination to replace retiring Justice Sandra Day O’Connor. Democrats moved quickly to put Alito on the defensive, challenging him to respond forthrightly to their questions on abortion, executive power, and other issues on which Alito has voiced views as a judge or as a Reagan and Bush administration attorney. Republicans defended Alito and said he should not feel obliged to answer questions about issues he might face as a justice.
Alito’s opening statement hinted that when he is asked about his own statements and writings as a Republican Justice Department attorney, he will portray them as lawyerly statements made on behalf of a client, rather than as heartfelt personal beliefs.
Reviewing his career path for the senators, Alito said, “When I became a judge, I stopped being a practicing attorney. And that was a big change in role.” Alito, 55, was appointed to the U.S. Court of Appeals for the 3rd Circuit in 1990. “The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand.”
Democrats privately described Alito’s opening as “unimpressive,” and Elliot Mincberg of the liberal group People For the American Way questioned a statement Alito made about his days as a Princeton University undergraduate in the late 1960s and early 1970s. Alito, referring to anti-Vietnam War protests that were common on campuses during that period, said, “I saw some very smart people and very privileged people behaving irresponsibly.” Said Mincberg, “That statement raises a lot of questions.”
But Alito supporters said he had successfully set a dignified tone for the hearings that would make Democrats look political if they probe his personal views too deeply.
“In an economy of words, Sam Alito became Everyman by expressing the most extraordinary love of parent, spouse, and community and an unquestioned fidelity to the rule of law,” said Pepperdine University law professor Douglas Kmiec.
Before the hearing began, Alito got a symbolic boost from Bush with breakfast at the White House. “Sam’s got the intellect necessary to bring a lot of class to that Court,” Bush said to reporters afterward. “I know the American people will be impressed, just like I have been impressed and a lot of other members of the Senate have been impressed.”
But Democrats made it clear that while Alito has the intelligence and the temperament for the high court, that is not sufficient. They said that Alito must explain his track record as a judge who, much more often than not, votes for the conservative position in cases before him.
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Sen. Edward Kennedy (D-Mass.) cited a study of Alito’s rulings by University of Chicago law professor Cass Sunstein indicating that in cases involving individual rights, Alito’s dissents argued against the rights claim 84 percent of the time. “Average Americans have had a hard time getting a fair shake in his courtroom,” said Kennedy.
“Supreme Court nominations should not be conducted through a series of winks and nods designed to reassure Republican factions while leaving the American people in the dark,” said Sen. Patrick Leahy (D-Vt.).
“Before we give you the keys to the car, we would like to know where you plan to take us,” added Sen. Herb Kohl (D-Wis.).
“Most of the familiar arguments for ducking direct questions no longer apply, and certainly do not apply in your case,” said Sen. Charles Schumer (D-N.Y.).
Because of Alito’s 15 years as a judge on the court of appeals, Sen. Richard Durbin (D-Ill.) said that Alito must respond substantively.
“More than any recent nominee, your speeches, your writings, and your judicial opinions make it clear that you have the burden to prove to the American people that you would not come to the Supreme Court with any political agenda,” said Durbin. “Clear and candid answers to the questions we ask are critical to the outcome of this hearing.”
For their part, Republican Judiciary Committee members defended Alito and indicated they would defend him if he refuses to answer questions about issues that could come before him as a justice.
“Score cards are common in the political process, but they are inappropriate in the judicial process,” said Sen. Orrin Hatch (R-Utah). “The most important tools in the judicial process are not litmus paper and a calculator.”
Sen. John Cornyn (R-Texas) predicted that at least 22 Democrats in the Senate will oppose Alito “no matter what you say, no matter what you do.” That is the same number who voted against the nomination of John Roberts Jr. to be chief justice in September. “If qualifications, integrity, fairness, and open-mindedness were all that mattered in this process, you would be confirmed unanimously,” said Cornyn.
Committee Chairman Arlen Specter (R-Pa.) was notably more neutral in his own opening remarks, stating, “I have reserved my own judgment,” and indicating he has reservations about Alito’s views on abortion rights.
Specter and other senators also indicated they will ask Alito about his views on presidential and congressional power. “This hearing comes at a time of great national concern about the balance between civil rights and the president’s national security authority.”
Alito sat passively as the senators sparred with one another over what kind of questioning was appropriate. He made a brief reference to the struggle ahead when he introduced his family to the senators. Alito recalled that when he was nominated to the appeals court in 1990, his son Philip, then 3, tried to sit next to him to help him defend against tough questions. “I don’t know whether he’s going to try the same thing tomorrow, but probably I could use the help,” Alito said. Philip is now a student at the University of Virginia.
Tony Mauro can be contacted at [email protected].