By Dana Milbank
Wednesday, January 11, 2006
Just 15 minutes into his confirmation hearing yesterday, Supreme Court nominee Samuel A. Alito Jr. took a most novel tack: He mocked the Senate Judiciary Committee chairman.
Chairman Arlen Specter (R-Pa.), a supporter of abortion rights who earlier characterized the Roe v. Wade decision as a "super-duper" precedent, asked Alito if he agreed that another case upholding Roe was "a super-precedent."
"Well, I personally would not get into categorizing precedents as super-precedents or super-duper precedents," Alito replied, drawing laughter at Specter's expense. "Any sort of categorization like that sort of reminds me of the size of the laundry detergent in the supermarket."
In seven hours of questioning before the Judiciary Committee, Alito testified with the confidence of a man who has enough votes to win confirmation. Unlike John G. Roberts Jr., who made frequent attempts to soften his views and dodged many of the questions, Alito took almost every question. And he did little to back away from his 15 years of judicial opinions and from an even longer trail of writings on abortion and executive power that have alarmed liberals and delighted conservatives.
Alito's hard line had the potential to inflame committee Democrats. But something -- perhaps Alito's low monotone, perhaps his fixed stare -- had a soporific effect on the senators. For all the expectations of fireworks on the first day of questioning of Alito, and for all the purported high stakes in the nomination, the mood in the hearing room was flat and lethargic. A contagious wave of yawns spread across the dais, from Specter to Sen. Charles E. Schumer (D-N.Y.) to Sen. Russell Feingold (D-Wis.), and crested in a brief catnap for Sen. Sam Brownback (R-Kan.). By midafternoon, only 28 of the 130 seats in the press section were occupied, and not all of those seated had their eyes open.
Sen. Joseph R. Biden Jr. (D-Del.), in his first 12 minutes of questioning the nominee, managed to get off only one question. Instead, during his 30-minute round of questioning, Biden spoke about his own Irish American roots, his "Grandfather Finnegan," his son's application to Princeton (he attended the University of Pennsylvania instead, Biden said), a speech the senator gave on the Princeton campus, the fact that Biden is "not a Princeton fan," and his views on the eyeglasses of Sen. Dianne Feinstein (D-Calif.).
While Democrats offered soliloquies, Republicans vied to lob softballs to the nominee. "Do you take the position that judges have a duty to respect constitutional restraints?" queried Sen. Charles E. Grassley (Iowa). "Can you assure us that you will have the courage and the determination to rule according to your best and highest judgment?" challenged Sen. Jeff Sessions (Ala.).
But nobody could match Sen. Orrin G. Hatch in slow pitching. The Utah Republican called ROTC programs "an excellent opportunity" and then asked: "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."
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. "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."
Between the Republican softballs and the Democratic speeches, there was little left for Alito to say. According to a calculation done by the committee's GOP staff, 10 of the first 12 senators spent more time talking than listening to the nominee's answers.
It was late in the afternoon when the hearing room finally began to acquire some energy. When Specter allowed a brief argument between Feingold and Hatch, Sen. Patrick J. Leahy (D-Vt.) protested: "The chairman was disturbed by my snoring over here."
Feingold got Alito to acknowledge that his failure to recuse himself in a case in which he had a potential conflict of interest "was not a computer glitch," as Alito had previously asserted.
Sen. Lindsey O. Graham (R-S.C.) provided some much-needed relief, pleading for absolution "if any of us come before a court and we can't remember [Jack] Abramoff," the disgraced lobbyist.
Schumer, the last Democrat to speak, waved a paperback copy of the Constitution and hauled out a poster showing Alito's 1985 statement that "the Constitution does not protect a right to an abortion." Over and over, Alito refused to say whether he still held that view. Schumer, anticipating the refusal, likened it to a friend's refusal to say whether he hates his mother-in-law. "Your refusal I find troubling," he said.
But Specter, at least, pronounced himself satisfied. Overcoming Alito's dig about the super-duper detergent, the chairman said he no longer considered the proceedings a "minuet" in which the nominee says as little as possible. "I think the dance pattern has changed," he said. "Maybe a foxtrot."