A Hearing About Nothing
A listless intellectual fog had fallen over the Senate hearing room on Tuesday, the first full day of questioning for Judge Samuel A. Alito Jr. before the Judiciary Committee. As one Democratic senator strode out to the hallway during an afternoon break, he leaned toward me and said: "We have to hit him
The senator was expressing frustration over a process that doesn't work. It turns out that, especially when their party controls the process, Supreme Court nominees can avoid answering any question they don't want to answer. Senators make the process worse with meandering soliloquies. But when the questioning gets pointed, the opposition is immediately accused of scurrilous smears. The result: an exchange of tens of thousands of words signifying, in so many cases, nothing -- as long as the nominee has the discipline to say nothing, over and over and over.
Alito, an ardent baseball fan, established himself as the Babe Ruth of evasion.
The headlines went to the abortion issue. Alito was pressed about his statement in a 1985 job application letter to the Reagan administration that "the Constitution does not protect a right to an abortion." It is a reasonable view shared by millions of Americans. Republican Sens. Sam Brownback (Kan.) and Tom Coburn (Okla.) were refreshingly open in their denunciations of Roe v. Wade .
But Alito would neither embrace nor back away from what he had said. He did allow that "there is a general presumption that decisions of the court will not be overruled." Well, yeah.
When Sen. Dianne Feinstein (D-Calif.) asked Alito if the issue was "well-settled in court," he offered the celebrated formulation: "I think that depends on what one means by the term 'well-settled.' " The standard dodge is that nominees can't answer questions bearing on cases they might later have to decide. But Democrats Feinstein, Richard J. Durbin (Ill.) and Charles E. Schumer (N.Y.) all noted that Alito was perfectly happy to speak expansively on some questions he would face, notably reapportionment.
Sen. Joe Biden (D-Del.), much mocked for his prolix prattling in the early going, actually made a pithy observation yesterday. He said that nominees "tend to answer controversial questions in direct proportion to how much they think the public is likely to agree with them."
Conservatives are right that our abortion debate is distorted because Roe v. Wade has forced too much discussion into the limited confines of Senate hearings over future judges. But that doesn't make the circumlocutions any more satisfactory. Conservative appointees who might well overrule Roe can't quite say so if they are to get the votes they need from Republican senators who support abortion rights and want to protect themselves with pro-choice voters.
That was just one of many evasions. When Sen. Patrick Leahy (D-Vt.) asked if "the president has the power to curtail investigations, for example, by the Department of Justice," Alito replied: "I don't think the president is above the law." A fine sentiment that didn't answer the question. Leahy asked yesterday if Congress could strip courts of their authority to rule on cases involving the First Amendment. Alito didn't have a view.
When Biden asked Alito about John Yoo's expansive reading of presidential power, Alito said he had not read the former Justice Department official's recent book, even though Yoo's views have long been well known.
And there was something odd about the gap in Alito's memory concerning his membership in Concerned Alumni of Princeton, a right-wing group whose publications said some rather unpleasant things about blacks, women and gays. Alito didn't remember anything, but if he did remember something, his membership might have been related to Princeton's decision to throw the ROTC off campus, even though parts of ROTC later returned. The first public reference I can find to the ROTC rationale came not from anything Alito has said but from talking points put out Monday by Republican National Committee Chairman Ken Mehlman.
My biggest worries about Alito are how he would rule on presidential power, workers' rights, civil rights and regulatory issues. Cass Sunstein, a University of Chicago law professor, has noted that Alito follows the law when it's clear, but he almost always tilts toward his conservative predilections when the law is less settled.
Democrats seem to be wary of mounting a filibuster. What they should insist upon, to use a euphemism Alito might appreciate, is an extended debate in which his evasions will be made perfectly clear to the public. If moderate senators want to vote for a justice highly likely to move the Supreme Court to the right, they can. But their electorates should know that's exactly what they're doing.