Senators of both parties complimented Alito for surviving 18 hours of testimony and roughly 700 questions. Judiciary Committee Chairman Arlen Specter (R-Pa.) praised Alito’s “remarkable patience and remarkable stamina” as well as his “very loyal family, led by your wife.”
Seven judges from Alito’s U.S. Court of Appeals for the 3rd Circuit spoke in the afternoon on his behalf an unusual move that both Sens. Russ Feingold (D-Wis.) and Richard Durbin (D-Ill.) said they thought was a bad idea. Critics have said the collective testimony of the judges would inject them into politics and could put Alito in the awkward position of possibly having to recuse himself in appeals of rulings written by judges who sang his praises.
Senior Judge Edward Becker praised Alito as a brilliant judge of integrity who is without an agenda or bias. “Whatever his views may be, his judging does not reflect them.” Added Chief Judge Anthony Scirica: “His reasoning is scrupulous and meticulous.” Judge Maryanne Trump Barry, who worked with Alito in the U.S. attorney’s office in New Jersey, said Alito “set a standard of excellence that was contagious.”
Also speaking were officials of the American Bar Association, explaining their high rating of Alito, as well as former Alito clerks and representatives of outside interest groups favoring or opposing the nominee.
The morning session began with Specter announcing that committee staffers Wednesday night scrutinized four boxes of records pertaining to the Concerned Alumni of Princeton, the controversial group that Alito belonged to but says he does not recall. Specter said that Alito’s name did not appear on any of the documents in the boxes, underscoring Alito’s contention that he had little if anything to do with the group, which opposed admission programs that increased the number of women and minorities enrolling at Princeton.
From that point on, few senators raised the Princeton issue again. But Democrats persisted with questions about Alito’s failure to recuse in cases involving Vanguard, where he had mutual fund investments. Sen. Edward Kennedy (D-Mass.) again accused Alito of changing his story about why he participated in a 2001 case involving Vanguard.
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Alito did acknowledge that “there was an oversight on my part” in how he set up his procedures for detecting potential recusal issues. His concession seemed to mollify Kennedy, who said, “We’ve all made mistakes.”
Other senators pressed Alito on the importance of precedent, a proxy for trying to determine if he is poised to overturn Roe v. Wade, the 1973 decision upholding abortion rights. Going perhaps slightly further than he had before, Alito stressed that “you need a special justification” to overrule precedent, which he said presumptively deserved to be upheld.
During one round of questioning, Alito offered a rare personal anecdote that informs his views on the need for diversity in education a factor the Court has cited in upholding affirmative action programs in higher education.
Alito told of teaching a seminar at Seton Hall Law School on civil liberties and terrorism after the 9/11 terror attacks. Alito said he realized “how valuable it was” to have a wide range of students in the class, including a veteran of the armed forces and a Muslim student.
For both the senators and Alito, there was a palpable sense that before the door was shut on any kind of conversation between the committee and the life-tenured nominee, final messages had to be conveyed. “This is the last opportunity,” said Sen. Patrick Leahy (D-Vt.) as he urged Alito, should he be confirmed, to abide by a Court custom that has in the past prevented the execution of death row inmates whose appeals were before the high court. The votes of four justices are needed to agree to hear a case, but five votes are needed to stay an execution. Leahy expressed the hope that in such a case, Alito would provide the fifth vote to halt an execution so that the Court could hear the appeal. “I hope this one stays in your mind,” he said.
Sen. Herb Kohl (D-Wis.) tried to draw Alito out on how he viewed retiring Justice Sandra Day O’Connor, whom he would replace if confirmed. “She will be remembered with great admiration” as a “pioneering figure,” Alito said, but he sidestepped the question of whether he would become a swing or middle vote. He said he would have to be his own person. “I will be the same sort of justice that I’ve been as a judge” on the 3rd Circuit.
Tony Mauro can be contacted at [email protected].