Fireworks on Alito
Senate Judiciary Committee members will finally get their chance to publicly grill Supreme Court nominee Samuel Alito today after a week of intense grass-roots lobbying by progressive and conservative interest groups.
With a longer, and more controversial, paper trail than Chief Justice John Roberts and the court's swing seat at stake, Alito is expected to face tough questioning from senators on issues such as the limits of executive power, the role of precedent, affirmative action and religious expression, based on statements from senators and three letters sent to Alito by Judiciary Committee Chairman Arlen Specter, R-Pa.
Democrats signaled the seriousness of their reservations by considering a procedural move that would force the committee to wait one week before sending Alito's name to the full Senate. Senate Majority Leader Bill Frist, R-Tenn., had wanted a Senate vote next week. With retiring Justice Sandra Day O'Connor, a moderate, serving on the court until her successor is confirmed, Republicans are anxious to install the more conservative Alito.
Sen. Charles Schumer, D-N.Y., a Judiciary Committee member and head of the Democratic Senatorial Campaign Committee, said in a speech last week that Alito should not expect an easy pass. Judge Alito has more to answer for than any other Supreme Court nominee in memory.
When a nominee has taken a position on a legal matter -- particularly when he has done so strongly and stridently, as Judge Alito has, there is a greater obligation to answer questions, Schumer said.
As for a possible filibuster, Democrats are taking a wait-and-see approach until after the hearings. Frist has pledged to "use all of the tools I have" to simply get votes for the president's judicial nominees to the Senate floor.
But experts think a filibuster is unlikely. "I dont think there's enough public interest to justify a filibuster," said Steven Smith, a political science professor at Washington University in St. Louis. An ABC News/Washington Post poll conducted in December showed 54 percent of Americans think the Senate should confirm Alito.
Still, Smith said, there are enough questions being raised by Democrats to make a majority of them inclined to vote no. Sen. Edward Kennedy, D-Mass., another Judiciary Committee member, noted last week that Alito has a steep hill to climb.
Democrats, who will call at least 14 witnesses this week, plan to aggressively pursue the issue of presidential power given the disclosure last month that President Bush authorized secret wiretaps without seeking court-approved warrants. In a 1984 memo to the solicitor general, Alito, then working in the Reagan administration, backed the idea of giving former Attorney General John Mitchell absolute immunity for warrantless wiretaps conducted in the 1970s.
That led Schumer to warn Alito in a Dec. 23 letter that if he refuses to fully answer questions about his views, it will make it harder for members of the Senate Judiciary Committee to vote for his confirmation. Judiciary Committee Ranking Member Patrick Leahy, D-Vt., said the memo deepens the impression of activism that colors Judge Alito's career.
The lag time in holding hearings for Alito, whom Bush nominated on Oct. 31, means questions about checks and balances will likely get more attention than if the hearings had been held just four weeks ago, noted G. Terry Madonna, director of the Center for Politics and Public Affairs at Franklin & Marshall College in Lancaster, Pa.
Another concern for Democrats is a 1985 memo in which the 55-year-old Alito stated that the White House should adopt a policy of gradually undermining Roe v. Wade, the court's landmark 1973 decision that legalized abortion. Alito told Specter, who supports abortion rights, in December that he was solely acting as an advocate, according to Congressional Quarterly.
"It's very difficult to make the case that Alito is out of the mainstream on the basis of memos he wrote 20 years ago," said Ross Baker, a political science professor at Rutgers University in New Brunswick, N.J., who has written several books on the Senate.
Democrats will then likely point to Alito's dissent on the 3rd U.S. Circuit Court of Appeals in 1991, when he stated in Planned Parenthood v. Casey that women should be required to notify their husbands before seeking an abortion. The Supreme Court, in a decision co-authored by O'Connor, overturned the law.
Alito is also likely to face questions about his record on civil rights. A 155-page report released last week by People for the American Way, a progressive group that opposes his nomination, says Alito has argued against civil rights positions 85 percent of the time the appellate court, on which he has served since 1990, was divided. House members of the Congressional Black Caucus oppose Alito, although they cannot vote on his confirmation.
Still, it may take more than simple ideology to stop Alito's nomination. A candidate's likeability can factor into the decision, experts say. And Madonna pointed out that the moderate Specter has voted to confirm stalwart conservatives such as Clarence Thomas.
Unlike Roberts, whose hearings were friendly and who was confirmed 78 to 22 with support from half of the Democratic caucus, Alito's nomination has evoked strong reactions from Democratic senators. Many Democrats fumed that Bush caved to his party's right wing by choosing a nominee nicknamed Scalito for his conservative opinions.
On the Senate floor in November, Senate Minority Leader Harry Reid, D-Nev., said he had significant concerns about Alito, and criticized Bush for failing to consult with Democrats before naming Alito and for choosing a man to succeed O'Connor, the court's first female justice. Alito is Bush's third nominee to replace O'Connor, who announced her intention to resign more than six months ago.
In naming Alito, however, Bush avoided the charges of nepotism that tinged the nomination of Harriet Miers, the White House counsel, and put more emphasis on choosing a candidate pleasing to his base. Alito, who has taken part in some 300 opinions, received the American Bar Association's highest rating last week. Compare that to Miers, who Specter dismissed as needing "a crash course in constitutional law.
The start of the hearings is a welcome diversion for Republicans, several of whom, including President Bush, returned campaign contributions last week from lobbyist Jack Abramoff. Abramoff will testify about his dealings with lawmakers as part of a plea agreement reached on several charges, including conspiring to bribe public officials. Abramoff gave money to both Democrats and Republicans, but his connections were especially close to Reps. Tom DeLay, R-Texas, and Bob Ney, R-Ohio. DeLay has been indicted on separate charges of campaign finance violations in Texas, and announced he would relinquish his role as House Majority Leader.
But Democrats may find themselves frustrated this week because Specter has made clear in the past that, while senators have the right to ask whatever questions they want, nominees have the right to answer only enough questions to win confirmation, noted Madonna, a longtime Specter observer.
The confirmation hearings take place after a heavy lobbying campaign from groups on both sides of the political aisle. Television advertising as of Jan. 1 totaled about $650,000, with conservative groups spending roughly 54 percent, according to the Brennan Center for Justice at New York University. The total is less than the $1.3 million spent on Roberts' nomination, although it does not include last-minute spending. It is also far less than the $18 million Progress for America, a conservative group, had pledged to spend to push Bush's judicial nominees.
Still, the group spent $500,000 on television ads this month backing Alito, and organized a 19-state tour of Alito supporters to try to influence senators in key states such as Louisiana, North Dakota and Rhode Island. The ad lashed out at "desperate liberals [who] make up a steady drip of attacks" against Alito.
This week, Moveon.org is launching a $150,000 ad buy on CNN and on stations in Ohio and Rhode Island, stating that Alito said he wrote his controversial abortion memo in 1985 solely to get a job. And IndependentCourt.org, a coalition of public interest groups, bought radio ads in Arkansas and Louisiana last week focusing on Alito's civil rights record.
Whether such actions will influence senators' votes is uncertain. Baker dismissed the interest group lobbying as political performance art, saying, "Its like the halftime pageant at the Superbowl. There's lot of activity and lots of fireworks, but it doesn't contribute to the score one iota."
A continued push by interest groups, however, could embolden Democrats to fight harder on Alito's nomination -- possibly leading to a brutal showdown over the future of the nation's highest court. That would be fireworks indeed.