Emphasis Shifts From Rights to Powers

During the initial hours of last September's confirmation hearings on the Supreme Court nomination of John G. Roberts Jr., Sen. Edward M. Kennedy laid out his central concern:

As chief justice, would Roberts "guarantee that all Americans have their rightful place in the nation's future? . . . We need to know his views on civil rights, voting rights and the right to privacy," said Kennedy (Mass.), one of five Judiciary Committee Democrats who emphasized Roberts's civil rights record during opening statements that day.

Four months later, as the same senators concluded about 18 hours of questioning of Supreme Court nominee Samuel A. Alito Jr., issues of civil rights -- while not entirely absent -- played a markedly less prominent role. While Roberts was in the witness chair, transcripts show, the phrase "civil rights" cropped up 65 times. During the same part of the Alito hearings, it was mentioned fewer than 20.

Although two Republican senators defended Alito's stance on affirmative action on the second day of the hearings, no Democrat asked him about it until Sen. Russell Feingold (Wis.) did so during the final round of questions yesterday.

Alito replied that, during his own experience in classrooms, he has discovered "how valuable having people with diverse backgrounds and viewpoints can be."

When Feingold pressed him on whether he believes that "increasing diversity in the classroom is a compelling state interest," the nominee did not answer directly, citing instead a Supreme Court ruling that he said was precedent.

Overall, according to an informal tally by the Judiciary Committee's Republican staff, senators asked Alito 26 questions about race, 10 about women, eight about people with disabilities and half a dozen about the implications of legislative redistricting for voting rights. In contrast, they asked more than 100 questions about abortion and 120 about presidential powers.

The different contours of the inquiry during the Alito and Roberts hearings reflect, in part, the different job experiences of the two men and the amount of written material on their views that was available to senators. They also reflect political calculations made by committee Democrats as to which themes would be most likely to sow doubts about the nominee among fellow senators and the public.

Roberts had been a federal appeals judge for only two years before President Bush nominated him to the high court, and most of the documents to which senators had access dated to the 1980s, when Roberts held influential positions in the Reagan administration Justice Department. "I thought, quite frankly, Roberts was the point man for the Reagan administration on civil rights," Kennedy said in an interview.

In contrast, Kennedy said, with 15 years of appellate court opinions, Alito has cast votes that Democrats regard as problematic in several civil rights lawsuits -- some of which they asked him about -- but Alito also has a record on a broader array of issues.

In particular, Kennedy said, the question "has ripened now" of whether Alito was sympathetic to an excessively broad interpretation of presidential powers.

One Senate Democratic leadership aide, who spoke anonymously because he was discussing internal party strategy, said Democratic senators had decided beforehand that their best avenues for challenging Alito were his character and issues that fell under the broad umbrella of privacy: abortion and the administration's domestic spying policies, as well as civil rights.

Leaders of several left-leaning advocacy groups that focus on various kinds of rights -- and have devoted money and energy to try to build opposition to Alito's confirmation -- said yesterday that they were satisfied with the questioning of Alito on those issues.

Leslie M. Proll, director of the Washington office of the NAACP Legal Defense Fund, said she was pleased Alito had been asked about cases involving job discrimination, voting rights and racial bias in jury selection.

But given Alito's history of rulings and the controversy over the administration's anti-terrorism policies, said Caroline Frederickson, director of the American Civil Liberty Union's Washington legislative office, "I think there's just a whole other layer on top of that."