Senators Pitch Slow and Easy to Alito

By Dana Milbank
Washington Post Staff Writer
Tuesday, January 10, 2006 2:03 PM

Let Chris Matthews and the Washington Nationals play hardball. At the Senate Judicary Committee hearing this morning on Samuel Alito's nomination to the Supreme Court, the dominant game was slow-pitch softball.

It was time for Sen. Orrin Hatch (R-Utah) to grill the nominee on his membership in the Concerned Alumni of Princeton, the group Alito belonged to that objected to larger numbers of women and minorities at the school.

"Is it fair to say that you were not a founding member?" Hatch probed.

"I certainly was not a founding member," Alito confessed.

Hatch was not finished. "You were not a board member?"

"I was not a board member."

The man from Utah was relentless. "You were not even an active member of the organization, to the best of your recollection?"

Alito could not deny it. "I don't believe I did anything that was active in relation to this organization," he said.

At this point, Hatch went for the kill. "Are you against women and minorities attending colleges?"

"Absolutely not, senator," the nominee testified, as the gallery erupted in laughter at Hatch.

Even Hatch, smiling, acknowledged his line of questioning was a bit limp. "You know, I felt that would be your answer," the senator said. "I really did."

For all the expectations of fireworks on the first day of questioning of Alito, the mood in the hearing room was flat. The chairman of the Judiciary Committee, Sen. Arlen Specter (R-Pa), and the ranking Democrat, Patrick Leahy (Vt.), asked tough questions, but Alito evaded them with the usual technical answers and legal platitudes. Two of the feistier Democrats, Edward M. Kennedy (Mass.) and Joe Biden (Del.) had sharp words for the nominee, but they spent the bulk of their time making speeches. It took Biden 12 minutes to get off a single question to Alito. During his 30-minute round of questioning, Biden spoke about his own Irish American roots and his son's application to Princeton (he attended the University of Pennsylvania instead, Biden said), while still finding time to joke about Sen. Dianne Feinstein's (D-Calif.) eyeglasses. With such Democratic filibusters, Alito had less pressure on him to explain himself.

That left Republican Sens. Hatch, Chuck Grassley (Iowa) and Jon Kyl (Ariz) to spend the morning acting as Alito's defense lawyer. Making no effort to pretend that they were uncommitted on the nomination, the three engaged in what one GOP staffer described as "rehabilitating the witness."

"Well, I have a much more positive view of you than has just been expressed," Grassley, who followed Kennedy, told Alito to kick off his round of questioning.

The questions would have seemed rhetorical if Alito hadn't answered them.

"So, Judge Alito, do you believe that the executive branch should have unchecked authority?"

"Do you understand that when constitutionally protected rights are involved, the courts have an important role to play in making sure that the executive branch does not trample those rights?"

"Do you believe that the president of the United States is above the law and the Constitution?"

"What do you think about judges allowing their own political and philosophical views to impact on any jurisprudence?"

"Do you take the position that judges have a duty to respect constitutional restraints?"

Alito's answers, for those of you keeping score at home: No, Yes, No, Against it, Yes.

But when it came to soft questioning, nobody could compete with Hatch. After his devastating grilling of Alito on the Princeton group, Hatch moved on to Alito's membership in the ROTC. "ROTC programs, sir, are an excellent opportunity for young men and women," the senator said. "You were a member of the ROTC -- is that true?"

Alito was caught. "I was, senator."

"You were a proud member of the ROTC," Hatch charged.

"I was," the nominee admitted.

Hatch persisted: "Did you enjoy your time in the ROTC and in the Army afterward?"

Alito confessed: "I was proud to be a member."

Even then, Hatch had not finished using his fierce prosecutorial skills. He turned to the accusation that Alito did not recuse himself from cases where there was a potential conflict of interest. "There was never any possibility of you benefiting financially, no matter how that case came out," Hatch accused. "Is that right?"

ALITO: "There was absolutely no chance and -- "

HATCH: "You actually did recuse yourself when the question was eventually raised, even though you didn't have to?"

ALITO: "That's correct, Senator."

Rephrasing the question, Hatch continued. "And so you went farther than you were legally or ethically mandated to do?" he probed.

"I did, Senator."

But Hatch was still unclear. "So let me just clarify this one more time, and you tell me if this accurately describes the situation," he began. "You did not believe that you were ethically or legally required to recuse yourself in this case. All the ethics experts agree with you. Yet you recused yourself anyway when the issue was raised. . . . Does that about sum it up?"

"That's correct, Senator."

"Well," Hatch concluded, "I have to say, judge, that you went above and beyond your ethical duties here."

A recess was called, and Hatch rushed to the microphones outside. "As you can see, this is one whale of an attorney here, one whale of a judge," he said. "Judge Alito is a brilliant jurist. He's a straight shooter. He's as ethically honest and decent as any judge on the federal bench today. . . . I think these are some of the most succinct and intelligent statements ever made about the philosophy of judging in any Supreme Court nomination hearing."

Perhaps. But nobody's saying the same thing of the questions.