By Jo Becker
Washington Post Staff Writer
Friday, November 25, 2005
One of the mysteries still hanging in the confirmation battle over Supreme Court nominee Samuel A. Alito Jr. is his view of a landmark case that established the legal principle of one man, one vote. The answer varies depending on when you ask -- not to mention whom you ask.
In 1985, when Alito was applying for a political appointment in the Reagan administration, he wrote that he disagreed with decisions by the Warren Court in the 1960s involving "reapportionment." Those rulings required electoral districts to have equal populations and helped ensure greater representation of urban minorities.
Those 20-year-old words are highly inflammatory to civil rights groups marshaling forces against President Bush's choice to replace retiring Justice Sandra Day O'Connor. But the White House and a key Republican ally this week were spreading the word that Alito has privately assured senators he has no intention of overturning the Warren Court's reapportionment precedents. Democrats, for their part, refuse to say what, if anything, Alito has told them on the subject.
The controversy over Alito's beliefs -- in the past and now -- illuminates one of the strange rituals of the modern confirmation process. Supporters usually say nominees should not comment on their views, except at official public hearings -- and often not even then. When it suits the purposes of one side or the other, however, conversations at the ostensibly private courtesy calls nominees pay on senators often are widely publicized, through authorized leaks or secondhand accounts from aides and political operatives.
The result can resemble the children's game of Telephone, in which a phrase or sentence is whispered from one player to the next but is often subtly altered in transit. It is an arrangement that does little to clarify a nominee's views on key constitutional questions and can sometimes lead to misunderstandings.
Last month, Sen. Arlen Specter (R-Pa.), chairman of the Judiciary Committee, met with White House counsel Harriet Miers before she withdrew her nomination to the Supreme Court. After the meeting, Specter told reporters that Miers had said a case involving the right to privacy was correctly decided, a characterization that Miers disputed after hearing about it on the news.
In Alito's case, the question revolves around what, if anything, he told senators about his views on Baker v. Carr, a 1962 case that gave federal courts the authority to review legislative redistricting, and Reynolds v. Sims , a case two years later that fundamentally altered political representation in the United States by ensuring that voters in rural areas had no more power than voters in denser urban areas.
On the Sunday talk shows, Sen. Joseph R. Biden Jr. (D-Del.) said the views Alito expressed in his 1985 memo about the Warren Court's reapportionment rulings have raised the chance that Democrats might filibuster his nomination.
"If he really believes that reapportionment is a questionable decision . . . you'll find a lot of people, including me, willing to do whatever they can to keep him off the court," Biden said on "Fox News Sunday."
The next day, the White House told conservative interest groups that Alito had assured senators in private meetings the previous week that one man, one vote is a "bedrock principle" with which he does not disagree. On Tuesday, a senior White House official confirmed that quote. Later that afternoon, Sen. John Cornyn (R-Tex.) volunteered some secondhand information.
"I did not have that conversation when I visited with him," Cornyn said. "But I had a conversation with the White House today about this subject -- and I'm not at liberty to divulge who the person is -- but I was assured by somebody who was in the room during visits with other senators that he considers one man, one vote a bedrock of our system. I was told he discussed it with Senator Kennedy."
If Alito did, Sen. Edward M. Kennedy (D-Mass.) is not saying. Spokeswoman Stephanie Cutter said she could neither confirm nor deny that any such conversation took place, adding, "I'm not going to help the White House put out a fire.
"It doesn't matter what he says in these meetings," she said. "What matters is what he says at the hearings under oath."
In that case, the public may have to wait for weeks for an answer from the horse's mouth: Alito's hearings are not scheduled to begin until January.