The gang that couldn't question straight

Eight Democratic senators had a chance to grill Samuel Alito Tuesday -- but their artless queries could have been dodged by a tree sloth.

Published January 11, 2006 12:01PM (EST)

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.

By Walter Shapiro

Walter Shapiro, a Fellow at the Brennan Center for Justice at NYU School of Law, is an award-winning political columnist who has covered the last nine presidential campaigns. Along the way, he has worked as Salon's Washington bureau chief, as well as for The Washington Post, Newsweek, Time, Esquire, USA Today and, most recently, Yahoo News. He is also a lecturer in political science at Yale University. He can be reached by email at and followed on Twitter @MrWalterShapiro.

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