For Democrats, A Most Tender Roast of Alito

By Marcia Davis
Washington Post Staff Writer
Wednesday, January 11, 2006

It was beginning to look as if the Democrats had shown up to a knife fight without a knife yesterday.

It was beginning to look as if they'd just been woofing when it came to the Supreme Court confirmation hearings of Judge Samuel A. Alito Jr. That they'd written a check full of bluster that a lackluster series of questions couldn't cash.

There were some deft jabs, for sure, and Democrats did visit the territories they had promised -- from abortion rights to executive power to issues of discrimination and the appellate judge's ethics. But the Dems didn't rampage, didn't storm the barricades as all their tough talk had promised.

In fact, most of the day was so quiet that by mid-afternoon you had Republicans such as Texas's John Cornyn going before reporters and essentially declaring victory.

That's hard to take when Americans have been promised a smackdown. This is a reality TV nation, a WWF kinda country, where we like to see a fight even when we know it isn't real, even when we know the stakes might just be a bag of Cheetos.

So when it's the Supreme Court, well, that's when the sparks are supposed to fly. That's what Democrats had promised in the Alito hearings. The New Jersey judge with humble roots would replace the all-important swing seat of Sandra Day O'Connor, they said. Abortion rights are at stake. The issue of executive power is on the table like never before in light of the president's recent wiretapping episodes. Alito is a guy who may be an extremist posing as a moderate.

They certainly talked a good game. After all, wasn't it last week that New York's Charles E. Schumer said Alito should not try to pull the same duck-and-dodge as John Roberts? Schumer even spoke of the possibility of a filibuster. And wasn't it Massachusetts's legendary lion Ted Kennedy who said Alito worried him because he seemed incapable of ruling against the government or big corporations in favor of the little guy? This is the seat that will push the court to the right, the argument went, the seat that matters more than replacing Chief Justice William Rehnquist with Roberts.

Unless you were paying really close attention early yesterday, it would have been hard to figure out whether what you were looking at was more than a garden-variety spat.

Yes, Patrick Leahy tried to press Alito on executive power.

Yes, Kennedy tried to grill Alito on his Vanguard mutual fund and said again that the judge was just too deferential to the president.

And Democratic senators pressed the judge on his membership in the Concerned Alumni of Princeton University, or CAP, which challenged the admission of women and minorities.

"They were hostile to what they felt were people that did not fit Princeton's traditional mold: women and minorities," Leahy said, noting that Sen. Bill Frist of Tennessee and former New Jersey senator Bill Bradley had criticized the organization and dropped their membership but that Alito had touted it in a job application in 1985.

Alito's answer: "Well, Senator, I have wracked my memory about this issue, and I really have no specific recollection of that organization."

The fact is that whatever passion and fight the Democrats had yesterday was poured through political politeness, a sieve of senatorial civility.

Sen. Joseph Biden, who pushed on issues of discrimination, spent the first few moments of his time trying to put Alito at ease.

"I understand, Judge, I'm the only one standing between you and lunch, so I'll try to make this painless," he told Alito. "Judge, I'd like to say a few very brief things at the outset. I'm puzzled, and I suspect you may be puzzled, by some of the questions. I don't think anybody thinks you are a man lacking in integrity. I don't think anybody thinks that you are a person who's not independent. I think that what people are wondering about and puzzled about is not whether you lack independence, but whether you independently conclude that the executive trumps the other two branches."

The heat picked up a bit as the day wore on, with Herb Kohl asking Alito about Bush v. Gore , the case that decided the 2000 election. Kohl called it a great example of judicial activism and asked Alito what he thought about it since he prides himself on his judicial restraint.

The judge said he hadn't studied the case closely.

Later, Schumer also tried to press the judge on his 1985 memo in which he said there were no constitutional grounds for a woman's right to an abortion.

The judge said he respected precedent and that if an abortion case got beyond that, then he would have to look at all the issues the way a judge does. Schumer kept at him, telling a story about a friend who, at the beginning of his marriage, told him he couldn't stand his mother-in-law. After 20 years, he asked him about it again.

"He said, 'I can't really comment.'

"What do you think I'd think?" Schumer asked, then stopped. He was brushing up against the edges of civility.

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