In a High-Stakes Game, a Badly Played Hand

The causes are myriad, but the result seems clear: Alito’s opponents threw everything they had at him and nothing worked. He is now virtually guaranteed to be confirmed.

THE NUMBERS GAME

There was one thing, of course, Senate Democrats couldn’t control: the Republicans’ 55-44 majority.

“Alito walked in there with all 10 Republican [committee] votes and 51 votes on the floor, and they knew it,” says Jeffrey Berman, who runs the Western region of People For the American Way. “They just set up a four-corners offense and ran out the clock.”

In fact, numbers tell the story in almost every judicial nomination. The party in power in the Senate, especially if that party controls the White House, always gets its man — at least it has since 1930. “I’m proud of the Democratic senators,” says Berman, the former chief counsel to committee Democrat Sen. Charles Schumer (N.Y.). “They just don’t have enough of them.”

They do have enough to filibuster, as it technically takes 41 votes, and there are 44 Democrats. But that’s not happening, either. In part that’s because, in practical terms, it takes several more than 41, says University of Connecticut professor David Yalof, who notes that it’s tough to get Democratic senators from GOP-leaning states like Nebraska, Arkansas, and Louisiana to go along.

Last year’s Gang of 14 compromise over judicial nominees instantly raised the standard for filibustering. That deal, in turn, stemmed from the Democrats’ promiscuous use of the filibuster against 10 federal appeals court judges in 2004, which, in the opinion of some, made using it to block Alito’s nomination that much harder. And three of those judges still wound up on the federal bench.

“We shot our wad. We filibustered 10 guys, and at the end of the day the worst got on anyway,” says a former Judiciary Committee counsel. “If we had not used the filibuster and pissed off the Republicans over the past four years, if it was seriously being entertained for the first time [against Alito], we might have succeeded.”

NOT ASKED, NOT ANSWERED

Still, a filibuster wasn’t the Democrats’ only option. There were the hearings. And it’s clear from a close reading of the Alito transcript that his Democratic interrogators did not give him a free pass.

Democrats hammered the 55-year-old federal appeals court judge for three days and more than a dozen hours on a broad range of subjects. They discussed obscure constitutional theories, the scope of executive power, the role of foreign law in Court deliberations, stare decisis, and privacy — again and again and again.

Alito fended them all off with the same sturdy stiff-arm. In the end there was simply no issue on which Democrats found traction.

Indeed, the whole week — a festival of modern senatorial oratory — will be remembered largely for one silent image: the tearful exit of Alito’s wife, Martha-Ann, from the hearing room after Sen. Lindsey Graham (R-S.C.) apologized to the Alito family for the hearings’ harsh tone.

The Democrats’ speechifying, of course, could have been sharper and more pungent, a more prosecutorial cross-examination than political stump speech.

There also could have been a concerted effort to redefine Alito’s 1985 job application to the Reagan Justice Department, in which he laid out his conservative jurisprudential philosophy and his opposition to abortion. They could have called it a personal essay, for example, so that his opinions were seen more as bedrock convictions than the kind of posturing one does simply to get a job.

But that’s a tough assignment for any panel of questioners, let alone a group of notoriously independent senators just back from recess with little inclination to coordinate their efforts, anyway. And who knows whether better questioning would have led to more satisfying answers.

The back-and-forth is a dance that is becoming increasingly orchestrated, notes Mark Gitenstein, who was chief counsel to the Judiciary Committee in the 1980s.

“The nominees know what the basic questions are — they don’t change much — and the committee knows what the answers will be,” says Gitenstein, a partner at Mayer, Brown, Rowe & Maw. “But the American people are not finding anything out about these nominees. There’s no real jurisprudential debate.”

There’s also the conundrum of any confirmation hearing: To really dig inside a nominee’s mind, senators have to ask questions “so arcane people can’t tell what the hell you’re talking about,” Gitenstein says. “But if you ask general questions, it’s easy to give a general answer.”

Starting with Chief Justice John Roberts Jr., the responses reached a new level of sophistication, he adds. “Roberts did a very excellent job of giving an answer which sounded like it was saying something and didn’t. Alito did the same thing, if not as polished.”

THE VANGUARD

To Republicans, there was a disingenuousness to the Democrats’ strategy. In an attempt to replicate their crowning success, the defeat of Robert Bork in 1987, they reached into a similar bag of tricks to try to demonize Alito to the American public.

“They stir these things up and the nominee spends all this time trying to rebut them,” explained Alabama Republican Sen. Jeff Sessions during a break in the hearings earlier this month. “The nominee hits the hearings a little bit under a cloud — this is the Supreme Court and everybody’s watching. [Sen. Edward] Kennedy is the point of this flying wedge; he’s the guy who does the heavy lifting.”

The Massachusetts mauler was true to form, repeatedly assailing Alito’s credibility on something that, on its face, did not appear that grave — namely, Alito’s failure to put cases involving Vanguard, the mutual fund company in which he owned shares, on his recusal sheet.

True, during his 1990 confirmation hearings for a seat on the U.S. Court of Appeals for the 3rd Circuit, Alito explicitly promised the Senate that he would recuse himself from any Vanguard cases. But as he repeatedly pointed out, there was never the slightest possibility that any ruling he made could have affected the price of his mutual fund.

Then there was the Concerned Alumni of Princeton, the defunct group to which Alito once belonged. Democrats hit the issue hard, asking how Alito, an immigrant’s son, could have associated himself with a group dedicated to keeping minorities out of Princeton.

But the CAP issue also failed to gather much traction, possibly because no proof could be found that Alito had anything more than a marginal connection to the group.

ABORTION WRONGS

Despite their superior numbers, the White House and its allies in the Senate weren’t taking any chances on their man.

Might he fare badly in comparison with Roberts, whose stellar performance four months earlier became a benchmark for all future nominees?

No problem. Make sure early on that everyone believes Alito is not in the same league as Roberts — whether he is or not.

“They played a great game of lowered expectations,” adds the former committee counsel. “Roberts was a rock star; this guy was a high school bandleader.”

Republicans also did a better job than Democrats of framing the nominee. “Alito was presented, both by himself and his sponsors, as a conventional person, a middle-of-the-road American,” says political scientist Andrew Seligsohn, who teaches at Hartwick College in Oneonta, N.Y. “And we’re being asked to believe that this conventional guy will act radically. That’s hard to believe.”

Democrats, he says, “never put together the case that while this guy may look conventional, the judicial philosophy to which he subscribes is radical.”

Even Alito’s answers on abortion, which justifiably raised fears among pro-abortion rights senators, failed to make much impact at the hearings. This despite the fact that Gallup Poll data for the past 30 years consistently show that a majority of Americans believe abortion should remain legal.

It’s possible that a certain complacency about abortion has set in. Today virtually no woman of reproductive age in the United States has known a time when abortion was illegal. And a lot of the barriers to abortion don’t sound threatening, anyway, adds Patton Boggs partner John Jonas. “You want parental notification; you don’t want late-term abortions,” he says.

For most people, overturning Roe v. Wade does not seem like a real possibility, notes Jonas, a former Hill staffer. “It’s like the draft. �Oh, they’re going to bring back the draft. That’s not a credible threat.’ “

And while Beltway politicians may be aggrieved that Alito and other recent Supreme Court nominees are able to get away with saying nothing, many Americans don’t seem to mind, notes another former Senate staffer.

“We’ve been through this enough, and to some extent people are getting a little savvier. People don’t expect judges to be politicians,” he says. “It’s a distinction not being lost on the people, although politicians have not yet caught up with it.”

There are exceptions, including former Sen. Alan Simpson (R-Wyo.), who says he never paid attention to ideology. “I laid my blood on the line for Clarence Thomas, and if the issue is abortion, I must have missed something, because I’m pro-choice.”

In fact, says Simpson, he’d prefer a Court with members who hold strongly opposing views. “It would be a wonderful thing to have a Bork and a Tribe on the Court,” he says, referring to defeated Supreme Court nominee Robert Bork and liberal Harvard Law professor Laurence Tribe. “You throw guys of this brilliance in a room with their seven colleagues. I can’t imagine the richness of the discussion.”