Specter permitted each member of the committee five minutes to talk about the nomination, although several went far beyond that limit.
Democrats were unapologetic in their opposition to Alito, who has served on the U.S. Court of Appeals for the 3rd Circuit for the past 15 years. Republicans, by contrast, were effusive in their praise. And they insisted that Democratic problems with Alito boiled down to one issue: abortion.
“Seeing one of the finest judges in the country have a straight party-line vote, that’s amazing to me,” said Utah Republican Sen. Orrin Hatch, during an impromptu news conference with seven other Republican committee members a half-hour after the vote.
In a 1985 application for a senior position at the Department of Justice, Alito wrote that he did not believe that the Constitution protected a woman’s right to an abortion. During his three days of questioning, Alito confirmed the accuracy of the 1985 memo, but he never explicitly said whether he continued to hold that view.
California Democrat Sen. Dianne Feinstein, the committee’s only female member and a strong proponent of abortion rights, was unsettled by Alito’s response to her question about the precedential strength of the Supreme Court’s 1973 opinion Roe v. Wade.
“Precedent is not an inexorable command,” she noted Alito had said during his confirmation hearings. “That spoke volumes to me,” she said, adding that was the same language the late Chief Justice William Rehnquist used when he tried to overturn well-established precedents. “That said, Judge Alito probably would not uphold Roe if given the chance.”
Democrats also complained that, more generally speaking, Alito’s answers on a range of subjects, from executive power to civil rights, may have appeared to be substantive responses, but, in fact, were not.
“On too many issues we were treated to artful evasions and pleasant banalities,” New York Democrat Sen. Charles Schumer told his fellow committee members as well as the national television audience watching the committee meeting. Alito, said Schumer, “intoned no fewer than six times that �No one is above the law.’ But has any nominee ever said anyone is above the law?” Reading from a prewritten speech, Schumer said, the American people, like most members of the committee, deserve “honest answers, not practiced platitudes.” Alito, he added, “has stood alone, at the edge of the judicial mainstream, in too many important cases and on too many important issues.”
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Other Democrats complained that Alito’s hundreds of decisions over the years demonstrated undue deference to executive power. “We cannot count on Judge Alito to blow the whistle when the president is out of bounds,” noted Massachusetts Democrat Sen. Edward Kennedy.
Democrats also faulted Alito for taking a narrow and technical view of large and complex legal issues. “He repeatedly, and in some cases gratuitously, raised questions of justiciability,” said Wisconsin Democrat Sen. Russ Feingold, who went on to criticize Alito’s views on privacy and deference to the executive branch.
That led South Carolina Republican Sen. Lindsey Graham to respond: “After listening to Senator Feingold, it’s amazing that [Alito] should even be considered for the nomination he should be under house arrest.”
Republicans, including Graham, had strong praise for the nominee, sometimes even soaring praise.
“This is a towering legal figure,” said Alabama Sen. Jeff Sessions. “He was a magnificent witness, he was unflappable. It was exciting to see him perform that way. He represents the very best in judges.”
Other Republicans felt it was the content of Alito’s answers, rather than his style, that bothered Senate Democrats.
Said Texas Republican Sen. John Cornyn: “I think some of my colleagues are voting against Judge Alito not because he didn’t answer the questions adequately, but they didn’t like the answers he gave.”
T.R. Goldman can be contacted at [email protected].