They were the gang who couldn’t question straight.
The eight Democrats on the Senate Judiciary Committee were given four hours Tuesday to grill Samuel Alito in the first unscripted day of the Supreme Court confirmation hearings, but for all they accomplished politically, they might as well have grilled frankfurters. With the clock ticking, the committee Democrats failed to advance any major new lines of argument or prompt any damaging admissions from George W. Bush’s latest pick to replace Sandra Day O’Connor on the bench.
Instead, Alito’s foes fell into the predictable trap of prefacing every question with a three-minute speech and then phrasing the query so artlessly that even the cast of Teletubbies would not have been fooled. Joe Biden — one of the three Democrats on the committee who has spent half his life in the cave of winds known as the Senate twice called Alito “a man of integrity.” That may be polite, but it was not an adroit way to set up a political argument that Alito broke his word to the Senate by ruling on a case that involves the firm that manages his mutual-fund investments.
Herbert Kohl, perhaps the least skilled Democratic questioner, was surprisingly on a roll as he asked Alito to explain his 1988 comment hailing Robert Bork (the last Supreme Court pick to be blocked by Democrats) as “one of the most outstanding nominees of this century.” Confronted with that bygone quote, Alito was reduced to haplessly claiming, “When I made that statement in 1988 I was an appointee in the Reagan administration and Judge Bork had been a nominee of the administration.” But any hopes of a memorable moment collapsed when Kohl ended the line of questioning by absent-mindedly saying, “Very good.”
With the 30-minute rounds of questioning alternating between fawning Republicans and feckless Democrats, darkness had already fallen over Washington when Chuck Schumer, the most fiercely partisan Alito foe, finally got his moment at the microphone. Schumer devoted six long minutes to demanding that Alito explain whether he still believes, as he claimed in a 1985 job application, that “the Constitution does not protect a right to an abortion.” Each time Schumer repeated the question in a hostile tone, Alito would respond with an evasive answer like, “I would need to know the case that is before me and I would have to consider the arguments and they might be different arguments from the arguments that were available in 1985.” Finally, Schumer gave up in frustration as he said, “I know you’re not going to answer the question. I didn’t expect really that you would.” Question for Sen. Schumer: If you didn’t expect a useful answer, why did you waste six minutes asking the question?
The daylong circus of missed opportunities made me long for the days when John Edwards sat on the Judiciary Committee. Unique among congressional inquisitors, Edwards had actually faced a jury as a lawyer recently enough to still remember his courtroom tricks. During Bush’s first term, I twice watched with awe as Edwards trapped Attorney General John Ashcroft in an embarrassing knot of contradictions over military tribunals and enemy combatants. But nothing like that happened Tuesday. Instead, the Democrats squandered the first round of questioning without coming up with a politically appealing rationale to justify a Senate filibuster against Alito, the only plausible strategy for stopping the nomination.
In a reflection of either overconfidence or a shrewd recognition of his limitations as a public figure, Alito spent the long day refraining from any attempt to make himself charming, colorful or even interesting. Gone was the man-of-the-people number from Alito’s opening statement Monday, which stressed his blue-collar New Jersey roots. In its place was Alito as the Law Student from Hell, the geek who memorized every bit of case law in the library without developing a single opinion that would make him an intriguing dinner-party companion.
During the hearing, the legal phrase “stare decisis” (rough meaning: Previous precedents are authoritative) was uttered so often that I began imagining a particularly outspoken porn star named Starry Decisive. In the ritual dance over abortion, a judicial nominee who affirms a deep belief in stare decisis is saying, in effect, that he or she will not overturn Roe v. Wade.
But when Arlen Specter, the GOP committee chairman who favors abortion rights, raced down this time-worn path with the hearing’s open bell, the nominee did not do much to be reassuring. Alito pledged his troth to stare decisis, but then immediately hedged: “It’s not an inexorable command, but it is a general presumption that courts are going to follow prior precedents.” The word “inexorable” is the one pregnant with the hidden meaning. As Ryan Lizza recently pointed out in the New Republic, Justice Louis Brandeis declared in 1935 that precedent (OK, he used that pesky two-word Latin phrase) “is not a universal, inexorable command.” Getting back to abortion, Chief Justice William Rehnquist quoted Brandeis in his 1992 dissent in the Casey case, the decision that affirmed Roe v. Wade. So when Alito said “inexorable,” he was seemingly signaling that he agreed with Rehnquist that Roe should be overturned.
Somehow it is hard to imagine a dynamite television commercial built around Alito’s use of “inexorable.” That truth encapsulates the daunting challenge facing Senate Democrats. There are valid reasons to oppose Alito (from abortion rights to his exaggerated respect for the powers of the presidency), but after two days of Judiciary Committee hearings, it is still Eight Democrats in Search of a Story Line.
Perspective is everything in journalism, and mine offered a panoramic view of Samuel Alito’s bald spot. Like the rest of the print press who chose to watch the opening day of the Judiciary Committee hearings live, I was seated behind the Supreme Court nominee and got a full-faced view of him only on the television monitors. This odd vantage point allowed me to dwell on Alito’s down-to-earth personal grooming style (no fancy fluff jobs or desperate comb-overs for this proud son of New Jersey), even as the would-be replacement for Sandra Day O’Connor was bragging about his “unpretentious, down-to-earth” home town of Trenton.
I was in prime position, however, to study Alito’s left profile when he was briefly forced to turn his head to offer a rapt gaze to the junior Republicans on the fringes (both physically and politically) of the committee lineup. I watched Alito as Oklahoma’s rabidly antiabortion Tom Coburn thundered, “The question that arises … as we approach a Supreme Court nominee is, where are we in America when we decide that it’s legal to kill our unborn children?” Wait, did I detect the tiniest nod from the nominee? Or was that just an involuntary twitch of Alito’s jaw muscles from the fatigue of pretending to listen intently to more than three hours of stentorian senatorial opening statements?
Reading Alito’s physiognomy at moments like this may offer as good a clue to his potential high-court jurisprudence as anything else that comes up during the hearings. The truth is that the 20th century is littered with epic misjudgments of Supreme Court nominees. Hugo Black was pilloried for his 1920s membership in the Ku Klux Klan, but emerged as one the liberal pillars of the Warren court and joined in the unanimous decision outlawing school segregation. His colleague Felix Frankfurter was considered an ardent liberal when he was appointed by Franklin Roosevelt in 1939; instead, he is remembered as an old-fashioned conservative judicial icon.
Judiciary Committee chairman Arlen Specter, the only Republican on the committee who champions abortion rights, made an analogous point as he kicked off the hearings. “The history of the court is full of surprises on the issue,” Specter said. “The major case upholding Roe was Casey v. Planned Parenthood, where the landmark opinion was written jointly by three justices: Justice O’Connor, Justice Kennedy and Justice Souter.” Specter gleefully pointed out that each of those three justices came to the court with a reputation for being antiabortion.
None of this should suggest that Alito is another stealth moderate in the mold of David Souter. Rather, Specter was probably indulging in wishful thinking as he tries to convince himself that he can play the loyal Republican by supporting Alito while not ending up as an architect of a Supreme Court that overturns Roe v. Wade. Unequivocal as Alito’s antiabortion record appears to be, virtually all the evidence is at least 15 years old. The job-seeking memo in which Alito bragged of his belief that the Constitution does not guarantee abortion rights dates back to 1985. Even the most clear-cut abortion case that has come before Alito on the federal appeals court (Casey v. Planned Parenthood, in which he dissented) was decided in 1991.
When the real fireworks begin on Tuesday, the most frustrating problem for committee Democrats in quizzing Alito is the sort of artful blandness that Ruth Bader Ginsburg got away with during her own 1993 confirmation hearings. Ginsburg, who was confirmed by the Senate on a 96-3 vote despite having once worked as a staff attorney for the American Civil Liberties Union, kept repeating pieties such as, “I am a judge. I am not an advocate.” When Utah Republican Orrin Hatch, still on the committee, pressed Ginsburg to clarify her views on capital punishment, she unyieldingly replied, “I have tried to be as forthcoming as I can while still preserving my full and independent judgment.”
Principle is a malleable concept when it comes to high-stakes fights over Supreme Court nominees. Republican bleats that all judicial nominees deserve an up-or-down vote now sound ludicrous after conservatives deep-sixed Harriet Miers before she was even allowed to testify. In similar fashion, it is difficult for Democrats to credibly demand that Alito speak in detail about his judicial philosophy on issues like abortion since the party defended Ginsberg in her you-can-ask-but-I-won’t-tell tap dance. That pesky bit of precedent did not prevent Democrat Joe Biden from telling Alito at Monday’s hearing, “I believe we — you and I and this committee — owe it to the American people in this one democratic moment to have a conversation about the issues that will affect their lives profoundly. They’re entitled to know what you think.”
The obstacle for Alito’s foes is that the appeals court judge does not fit into any of the patterns that have derailed Supreme Court nominees in the past 40 years. He certainly has not made segregationist speeches like G. Harrold Carswell (Nixon, failed class of ’70). He does not have the grave ethical problems that destroyed Lyndon Johnson’s attempt to make Abe Fortas chief justice. While Alito may have been remiss in not recusing himself from a few cases, his conflict-of-interest lapses pale in comparison with those of Clement Haynsworth (Nixon, failed class of ’69). And with a sterling academic background and 15 years on the federal bench, Alito will never be confused with the under-credentialed Miers.
All this brings us to the only Supreme Court nominee who failed on ideological grounds — Robert Bork in 1987. But the bearded Bork with his brooding countenance failed to win confirmation because he was, well, scary. As I watched Alito deliver his unrevealing opening statement in a nervous voice, he came across as a milquetoast, more Dagwood Bumstead than Darth Vader. Alito gave just one brief flick at a more combative persona when he said, in harking back to his student days at Princeton in the 1970s, “I saw some very smart people and very privileged people behaving irresponsibly.” If Alito can get through the next 48 hours of questioning by being smart, boring and ever so responsible, he will be well on his way to joining a rightward-leaning Supreme Court.
Samuel Alito is a passionate fan of the Philadelphia Phillies, a baseball team so star-crossed that it has won the World Series exactly once (1980) in the past century. Alito was already a federal appeals court judge in 1994 when he attended his favorite team’s fantasy camp, where middle-aged men suit up in Phillies’ uniforms for a few days on a spring-training diamond in Florida and pretend that with the right set of breaks they could have been big-leaguers themselves. Rooting for the Phillies and indulging his inner 11-year-old at fantasy camp should have taught Alito something about the role that luck plays in sports — and, yes, the confirmation of Supreme Court justices.
At high noon Monday (or probably a few minutes later since we are going by congressional time), Alito will stride confidently to the witness table of the Senate Judiciary Committee, smile at the 18 preening senators on a raised platform, put on his most thoughtful, nonthreatening, man-of-the-people expression for the cameras and begin the most grueling version imaginable of the law boards. But before Alito is allowed to recite his opening statement (the major event of the first day), protocol demands opening statements by those 18 senators, all of whom will make a public-television pledge drive seem like a model of brevity in comparison.
Trying to look engaged while the 18 senators read prepared remarks that reflect the law-library erudition of their staffers, Alito will have ample time to reflect on how the political clouds have darkened for presidential appointees since Chief Justice John Roberts glided through his own confirmation hearings last September. As Garrett Epps, a professor of constitutional law at the University of Oregon and an Alito critic, put it, “He has the worst luck in the world to have his nomination come up in the middle of the NSA wiretapping scandal.”
Context often trumps content in politics. Even before the New York Times revealed last month that George W. Bush has acted out his belief that court orders are for wimps when it comes to eavesdropping on purported terrorists, a rebellion was already brewing over the administration’s assertion of wartime powers until the last surviving member of al-Qaida gives up and goes to work for Halliburton. The libertarian wing of the Republican Party belatedly showed its moxie when three conservative true believers (John Sununu, Larry Craig and Lisa Murkowski), plus GOP maverick Chuck Hagel, joined Senate Democrats in a filibuster that has delayed a no-questions-asked extension of the Patriot Act. The Senate also expressed rare bipartisan unity in support of John McCain’s notion that torture should be regarded as the ultimate un-American activity. Newsweek summarized the changed mood with its cover line last week: “A New War Over the ‘Imperial Presidency.’”
Concepts like the “imperial presidency” have a special meaning for those of us who came of political age during the Johnson and Nixon administrations. Ted Kennedy harked back to the favorite political scandal of aging Democrats when he said at a get-ready-for-Alito press conference last week, “The role of executive power [will be] an area of enormous importance and consequence during the course of this hearing because I believe that we have seen historically where presidents have believed that they are above the law. We saw that with Richard Nixon in Watergate.” Even Texas Republican John Cornyn — a Judiciary Committee member who began a conference call with reporters by denouncing “hard-left opposition groups” — conceded, “I expect that you’ll hear questions from both sides on this balance between civil liberties and security.”
A fair reading of Alito’s paper trail suggests a strong philosophical tilt in favor of bold Bushian assertions of presidential power. This conclusion is not based on the ideological assertions in Alito’s now-famous 1985 job application when he was bucking for a promotion in the Reagan Justice Department: ”In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with the Warren Court decisions.”
Instead, the smoking-gun document comes much later — from November 2000 — when Alito, then a federal judge, participated in a panel discussion sponsored by the Federalist Society, the mother church for conservative lawyers. In his presentation, Alito argued strenuously in favor of a hail-to-the-chief legal theory called “the unitary executive.” (Note to readers: Relax, this won’t be on the midterm.) Briefly, what this theory argues is that every part of the executive branch (including regulatory agencies like the Federal Trade Commission and, yes, independent counsels like Kenneth Starr) should be legally under the control of the president. While Alito himself did not mention national security in his speech, other proponents of this theory — notably Dick Cheney’s new chief of staff, David Addington — have leaned on it to argue that a president can go beyond the law in carrying out his duties as commander in chief.
For those planning to follow the Alito hearings without the benefit of a legal education (having watched the O.J. Simpson trial on TV doesn’t count), a senatorial question about “the unitary executive” should not serve as an excuse to raid the refrigerator. While Alito (following the precedent set by Ruth Bader Ginsberg) will almost certainly duck a specific question on the legality of NSA eavesdropping because it could become a Supreme Court case, he has nowhere to hide when asked to amplify his 2000 remarks to the Federalist Society. The questioning about this speech will probably provide the most definitive clues about how much a Justice Alito would worship at the altar of the imperial presidency.
Up to now, I have flagrantly violated the pundit’s code by writing a preview of the Alito hearings that has not mentioned Roe v. Wade or that the next justice will be replacing Sandra Day O’Connor, the swing vote on virtually every divided issue before the court. The reason for this self-restraint is that the fate of the abortion decision and O’Connor’s legal legacy are not, by themselves, enough politically to derail the Alito nomination. In early December, political strategists directing the opposition to Alito privately calculated that they had almost no chance of stopping the rush to giving Bush another justice.
A month later, the mood on the left is much less bleak and meek. The gathering opposition to the Bush-Cheney version of “Big Brother is watching you” represents part of the equation. Another element is the gathering confidence among Senate Democrats — after delaying the Patriot Act and stopping Arctic drilling — that Bush can be beaten. But the final factor is the great unknown hovering over the hearings: Alito in his courtesy calls on Democratic senators came across as lacking the easy charm of Roberts and seemed — although no one will ever admit this on the record — not very likable.
Kennedy, who calculates that he has voted on 22 Supreme Court nominees during his four decades in the Senate, offered a simple formula for handicapping this week’s confirmation hearings. “All these nominees basically win it or lose it themselves,” he said. “That’s been my experience on the committee.” The betting line still favors Alito, especially since it is unclear whether the Senate Democrats are willing to risk their recent political gains with a filibuster. But remember that when Alito was an impressionable teenager in 1964, his favorite baseball team lost 10 games at the end of the season to blow a pennant that was theirs for the asking.
