Bipartisan Agreement: Roberts Was Just Terrific

Supreme Court nominee Samuel A. Alito Jr. is sworn in before the Senate Judiciary Committee. He waited three hours to give his opening statement while the senators made speeches.
Supreme Court nominee Samuel A. Alito Jr. is sworn in before the Senate Judiciary Committee. He waited three hours to give his opening statement while the senators made speeches. (Photos By Lucian Perkins -- The Washington Post)
By Dana Milbank
Tuesday, January 10, 2006

Sam Alito was the oldest child in his family, but after yesterday, he knows what it's like to be the second-born son.

Ordinarily, the first day of hearings for a Supreme Court nominee would be full of pomp and pageantry. But Alito had the misfortune of following by just four months the confirmation of the witty, charming and erudite John G. Roberts Jr. -- and there was a palpable sense of detachment in the hearing room yesterday.

Sen. Joseph R. Biden Jr. (D-Del.) arrived late for the nominee's opening remarks. Sen. Jeff Sessions (R-Ala.) lost his place while reading his speech. Sen. Edward M. Kennedy (D-Mass.) referred to the nominee as "Alioto," confusing him with the former mayor of San Francisco. Sen. Lindsey O. Graham (R-S.C.) bounced so impatiently in his chair that he appeared to be riding a mechanical horse. Former New Jersey governor Christine Todd Whitman, who introduced Alito to the committee, referred to the nominee as "President Alito," then told the TV cameras she met Alito when she was "governor of New York."

Then there was Judiciary Committee Chairman Arlen Specter (R-Pa.), who, just seconds after announcing that he would yield the floor to Sen. Russell Feingold (D-Wis.), called a recess and pushed back his chair to stand up. "Pardon me," Specter said, remembering his promise to Feingold. "I was so anxious for the recess, I jumped the gun a little."

Alito's bearing and speech to the committee were respectable. But he couldn't match the show put on by Roberts, who "retired the trophy," as committee member Richard J. Durbin (D-Ill.) once put it.

Alito entered Hart 216 with the lawmakers and, pausing as he reached his wife's seat, extended his hand to her. Rather than shake her husband's hand, Martha Ann Alito sensibly rose and gave him a kiss -- on the cheek. When senators delivered their speeches, Alito sat unnaturally still, feet flat on the ground, elbows on armrests, hands in lap, wearing an expressionless face.

Finally, called on to speak after three hours of waiting, Alito discovered he had a frog in his throat and, failing to clear it adequately, paused to pour and drink some water. Roberts had made a deep impression by speaking without notes and delivered a short, pitch-perfect speech to the committee comparing judges to baseball umpires. Alito, too, spoke without reading notes -- though he had pulled them out of his pocket just to be safe -- but his speech did not soar as high as Roberts's did, even as it exceeded the length.

"The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand," the nominee said in careful tones. "But a judge can't think that way."

He drew bipartisan chuckles with the self-deprecating quip that it "may have constituted cruel and unusual punishment" for committee staff to have to read all his opinions. And he hit all the right rhetorical points, praising his family, noting that a judge "can't have an agenda" and asserting that "good judges are always open to the possibility of changing their minds."

But throughout the day, Alito had to live in the shadow of Roberts, as senators constantly reminded him of his big brother's grand-slam metaphor.

"When he was here last fall, Chief Justice Roberts compared judges to umpires," Sen. Orrin G. Hatch (R-Utah) lectured Alito.

"Like Chief Justice Roberts, it appears that Judge Alito tries to act like an umpire," agreed Sen. Charles E. Grassley (R-Iowa).

Sen. Charles E. Schumer (D-N.Y.) implied that Alito would fail the Roberts umpire test: If "an umpire repeatedly called 95 percent of pitches strikes when one team's players were up . . . one would naturally ask whether the umpire was being impartial and fair."

The speeches followed a predictable pattern. Some Republicans, happy to be talking about something other than lobbying scandals or Iraq violence, openly celebrated Alito's antiabortion views.

" Roe has made it not only possible, but has found it constitutional to kill a whole class of people," charged Sen. Sam Brownback (R-Kan.).

Sen. Tom Coburn (R-Okla.) concurred that children are being "ripped from the wombs" and asserted: "The real debate here is about Roe ."

Democrats mostly declined to take the bait, instead praising the service of retiring Justice Sandra Day O'Connor and lamenting the withdrawal of nominee Harriet Miers. Rather than voice outright opposition to Alito, they spoke about being "concerned" and "troubled" about the high stakes involved.

The only thing both sides seemed to agree on was what a fine job Alito's predecessor before the committee had done. The senators, with fond recollections such as "Chief Justice Roberts put it best," invoked Roberts's name 34 times.

Finally, Specter took pity on the overshadowed second son. When it came time to swear in the nominee, the chairman pointed out that there were nearly 50 cameras present, compared with 28 for Roberts's swearing-in. "So that may be an omen," Specter said. He did not say whether the omen was good or bad.

© 2006 The Washington Post Company