Questioning Judge Alito

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Monday, January 9, 2006

MUCH RIDES on the Senate hearings that begin today on the nomination of Judge Samuel A. Alito Jr. to serve on the Supreme Court. Judge Alito is not well known in Washington, having spent the past 15 years on an appellate court elsewhere. So for the nominee, the hearings are a chance -- his only chance, really -- to allay Democratic hostility toward his nomination, which has been stoked both by legitimate concerns about his record and by no small amount of fevered and unfair political rhetoric. For senators, meanwhile, it is a chance to try to tease out whether Judge Alito is a traditional conservative of the type who ought to be confirmed or an outlier or extremist who ought to be rejected. The stakes are high, as they always are with Supreme Court nominations and because in this particular instance, Judge Alito would be replacing one of the court's swing voters.

At the same time, the hearings are unlikely to provide big surprises. Judge Alito, in any formal sense, is obviously well qualified -- as the American Bar Association recently recognized. Allegations of impropriety on his part seem trivial, and the ideological questions about him are well known: Does he have too limited a view of congressional power and too robust a view of states' rights? Will he respect privacy and abortion rights? Does he consider affirmative action programs presumptively unconstitutional? How broadly does he see presidential powers, particularly in wartime? What does he think now about the "one man, one vote" principle he appeared to question in the 1980s? Has he read civil rights statutes too narrowly? And perhaps most important, what are his views concerning how readily settled precedent should be disturbed?

All these questions will undoubtedly be probed -- as they should. And Judge Alito, just as surely, will not answer the questions -- at least not in the only sense in which the partisans care about answers. That is to say, he will not -- and should not -- tell Americans how he will vote on hotly contested issues. Judge Alito will seek to be reassuring yet noncommittal.

This is the same task that Chief Justice John G. Roberts Jr. faced, yet Judge Alito's job is harder. The chief justice, after all, was a widely known figure in Washington legal circles who had been on the bench only briefly, had run a completely non-ideological appellate practice and had many Democratic admirers in the bar. Judge Alito, by contrast, has been cloistered on the bench, building a strongly conservative record. In the modern Catch-22 of judicial confirmations, the only way to escape the charge of being a "stealth" nominee is to offer up a long history of writing for opponents to pick at. Judge Alito has done this, and there's a lot of picking to do.

It is quite clear already that Judge Alito would be a conservative justice. The question is whether he will emerge in these hearings as one energetically committed to remaking federal law to restrain congressional power, expand presidential authority and read individual constitutional rights narrowly or as a cautious judge who is mindful of the limits of judicial power. Both judicial personalities show up in his writings at times. The question for the Senate will be: Which is the real Samuel Alito?


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