After three days of tough questioning by Senate Democrats, including some personal queries that caused his wife to leave the hearing room in tears, Judge Samuel Alito appears likely to win confirmation as the nation's 110th Supreme Court justice.
The final witness in the hearings testified on Friday (January 13), and Republican Judiciary Committee Chairman Arlen Specter said he was hoping for a vote next week, though Democrats have indicated they may seek a delay.
Despite early threats from Democrats to filibuster the nomination, the conservative judge is on track to replace retiring justice Sandra Day O'Connor, who was a key moderate "swing" vote on issues like abortion, affirmative action and capital punishment (see "Sandra Day O'Connor, First Woman Supreme Court Justice, Announces Retirement"). Democrats fear Alito's nomination could push the highest court in the land toward a conservative majority.
Alito was calm and composed on the stand as he weathered repeated questioning from Senators about his views on the pivotal subjects of abortion, the limits of presidential power, and civil-rights issues, refusing to say how he would vote on such hot-button issues.
According to the Chicago Tribune, Democrats had pored over 15 years of Alito's decisions as a federal appeals court judge and his long record as a lawyer during the Reagan administration, but could not find a "smoking gun" that would derail his confirmation.
Among the "gotcha"s that Democrats pursued was a line of questioning about Alito's failure to recuse himself from a case involving Vanguard, a mutual-fund company he had investments in. Alito had vowed to step aside in the case when he was confirmed to the appeals court, but failed to do so, though he later asked a different set of judges to rehear the case. The American Bar Association, which had given Alito its highest rating, said the judge had done nothing wrong in its eyes.
The slightly disheveled, sometimes sweat-dappled Alito — who faced much harsher questioning than recently confirmed Supreme Court Chief Justice John Roberts — was nominated by President Bush in October, just days after White House Counsel Harriet Miers withdrew her name amid strong criticism from conservatives over her lack of experience as a judge (see "Bush Nominates Conservative Samuel Alito To Supreme Court"). Court followers saw Alito's nomination as an attempt by the White House to appease conservatives who had doubt about how Miers might rule on key issues.
Democrats took aim at Alito's decisions as a judge on the U.S. 3rd Circuit Court of Appeals, as well as his writings during the Reagan administration, such as a 1985 statement in which he said the Constitution did not protect the right to an abortion.
But, despite the past rulings that displayed his solidly conservative views on vital constitutional issues facing the court, Democrats were unsuccessful in painting Alito as right-wing ideologue likely to strike down the Roe v. Wade decision which says women have the constitutional right to abortion.
Alito began the week by telling his up-by-the-bootstraps life story, describing how he grew up the son of an Italian immigrant in blue-collar New Jersey and rose through the legal system. Though tense, the hearings were relatively civil — until Wednesday.
On that day, Democratic Senator Edward Kennedy got into a heated exchange with Republican Judiciary Committee Chairman Arlen Specter over Kennedy's demand that the committee produce private documents from the Library of Congress with information about the Concerned Alumni of Princeton. Alito was a member of the group at his alma mater, which protested affirmative action for women and minorities, and he listed his membership on a 1985 job application. He told the committee he was not currently an active member and after reviewing the files, Specter reported that Alito's name was never mentioned in them.
By the end of the day Thursday, Alito had confidently answered more than 700 questions during 18 hours of testimony, much of it on the issues of abortion and presidential power, displaying his wide-ranging knowledge of the law and legal precedents. Though he was unabashed about his conservative view of the courts and his belief that judges have a limited role, Alito was short on specifics when it came to his personal views on major issues. For example:
- Abortion: Alito said he would respect the precedent, but like previous nominees, would not say that Roe v. Wade was the final word on the issue.
- Presidential power: As a lawyer during the Reagan administration, he advocated strong presidential powers, but when Democrats suggested those writings indicated he would be likely to give president Bush too much leeway in curtailing the civil liberties of Americans, Alito denied the link. With the specter of the National Security Agency scandal involving secret eavesdropping on Americans approved by Bush hanging over the proceedings, Alito said firmly that "no one" is above the law, including the president.
According to the Tribune, Senate aides predicted that Alito would be approved by the Judiciary Committee on a 10-8 vote along party lines, as early as next week, assuming Democrats do not seek the threatened one-week delay. The Associated Press reported that even if there is a delay, it's not likely to change the support among the Senate's 55 Republicans, who praised Alito as his testimony ended. The only hope Democrats have of stopping the nomination is to muster the required 41 votes to sustain a filibuster. There are 44 Democrats and one Democratic-leaning independent, but not all Democrats have voiced opposition to Alito's nomination.
Some Democrats have indicated they don't think a filibuster is appropriate, though Senate Minority Leader Harry Reid cautioned that a decision on Alito should not be made until there is time to discuss the nomination next week.
"Unfortunately, Judge Alito's responses did little to address my serious concerns about his 15-year judicial record," Reid said, according to the Tribune, adding he had not forgotten that the right wing had forced Miers to withdraw in favor of "a sure vote for their extreme agenda" (see "Why Does Bush's Latest Supreme Court Nominee Scare The GOP?").
At the end, Alito was bruised, not battered. And though vague, he stood his ground and didn't commit any major blunders. His respect and knowledge of the law was evident, though his personal philosophies were not. Senators were left with the simple statement that Alito, 55, gave at the end of his public testimony: "I am my own person, with whatever abilities I have and whatever limitations I have."