By Charles Babington and Jo Becker
Washington Post Staff Writers
Friday, January 13, 2006
Samuel A. Alito Jr., an appellate judge who could shift the Supreme Court significantly to the right, appeared headed for the high court yesterday after completing three days of interrogation without a serious misstep.
Democrats on the Senate Judiciary Committee made a final stab at challenging Alito on presidential powers, the death penalty and other matters. But their efforts sometimes seemed halfhearted, and even the most liberal advocacy groups acknowledged privately that they saw slim hopes of preventing his confirmation later this month in the full Senate, where Republicans hold 55 of the 100 seats.
President Bush called Alito from Air Force One "to congratulate him for doing a great job during the hearings," the White House said. Committee member John Cornyn (R-Tex.) predicted the nominee "will be confirmed," adding that "the unfounded attacks on Judge Alito had about as much traction as bald tires on an icy road."
When the hearings began Monday, liberal activists said their best hope was for Alito to commit a gaffe or lose his composure. When his 18 hours of testimony ended at lunchtime yesterday, and Republican senators scurried to shake his hand, both sides agreed he had done neither.
The committee could vote as early as Tuesday on whether to recommend Alito, 55, to the full Senate. All 10 Republicans on the panel appear virtually certain to support him, while several senators predicted all eight Democrats will oppose him.
Liberals fear Alito's potential impact on the court because Bush tapped him to succeed retiring Justice Sandra Day O'Connor, who has sided with liberal justices in several high-profile 5 to 4 decisions over the years. Alito, a New Jersey-based federal appellate judge for the past 15 years, praised O'Connor's work ethic yesterday without addressing her often moderate views.
"I would try to emulate her dedication and her integrity and her dedication to the case-by-case process of adjudication," he told Sen. Herb Kohl (D-Wis.). "I am my own person, with whatever abilities I have and whatever limitations I have."
Sen. Orrin G. Hatch (R-Utah) predicted that Alito will win the backing of all 55 GOP senators, including those who support abortion rights and those who joined a bipartisan effort last year to avert a showdown over judicial filibusters. He practically dared Democrats to try a filibuster, a tactic in which they could block a vote on Alito's confirmation unless 60 senators agreed to end debate. Democrats used the procedure to block several appellate court nominees in Bush's first term.
"If they want to filibuster, frankly, bring it on," Hatch said. In return, he predicted, Republicans would change Senate rules to ban judicial filibusters.
Democrats generally avoided mentioning the tactic. "We've still got a ways to go to figure what the strategy is going to be," Sen. Edward M. Kennedy (D-Mass.), the committee's best-known liberal, said in an interview.
Minority Leader Harry M. Reid (D-Nev.) issued a statement criticizing Alito but not mentioning a filibuster. "I have not forgotten that Judge Alito was only nominated after the radical right wing of the president's party forced Harriet Miers to withdraw," he said, referring to Bush's earlier choice for the slot.
The White House thinks Alito will win 60 to 70 votes for confirmation, short of the 78 votes Chief Justice John G. Roberts Jr. received last year, said an administration official who spoke on the condition of anonymity to avoid offending senators' sensibilities. One Senate Democrat, Ben Nelson (Neb.), said yesterday that he has seen nothing "that I would consider a disqualifying issue against Judge Alito."
Throughout the week, committee Democrats cited Alito's rulings and writings to press him on several fronts. Alito parried questions about his 1985 statement that the Constitution does not protect the right to abortion by saying he would keep an open mind as a justice.
When Democrats said that he would not act as a check on unbridled presidential powers, he said the president is not above the law, while dodging the issue of whether Bush's recently disclosed domestic surveillance program is legal. He said he had been forgetful in not recusing himself in a case involving the Vanguard investment company and in joining a Princeton alumni group that sought to limit the enrollment of women and minorities.
At the hearings' outset on Monday, many liberals and conservatives thought Alito would be more vulnerable than Roberts was to Democrats' attacks because he had a longer and more overtly conservative record to defend, and because senators from both parties described him as less charming and erudite in private meetings. Yesterday, activists in both camps said Alito had avoided all major traps by maintaining his calm and refusing to be drawn into definitive statements about divisive issues such as abortion.
"I was a little apprehensive going in," said M. Edward Whelan III, a conservative commentator supporting Alito. "But in his way, he was at least as impressive as Roberts."
Nan Aron, head of the liberal Alliance for Justice, which opposes Alito, said Roberts's impressive performance seemed to create momentum that carried over to Alito. When Roberts's hearings began in September, she said, "you could feel an air of excitement," largely because it was the court's first vacancy in a decade.
When Alito's hearings began, Aron said, "much of the energy was deflated in that room." Although some liberal activists wanted Democrats to question the nominee more aggressively, Aron did not fault their performance. "Most of the problematic issues have been touched on by the senators," she said.
Wednesday's biggest bang ended in a whimper yesterday, when committee Chairman Arlen Specter (R-Pa.) announced that Alito's name was not found during a late-night search of documents at the Library of Congress dealing with the group Concerned Alumni of Princeton. Alito had boasted about his membership in a 1985 job application in the Reagan administration but told senators he could recall nothing about the group, which opposed increased enrollment of women and minorities at Princeton.
Several Republicans said Democrats' efforts were hurt Wednesday when Alito's wife fled the hearing room in tears after Sen. Lindsey O. Graham (R-S.C.) summarized the attacks related to the alumni group.
Yesterday, Democrats instead forged ahead on other fronts. Alito declined to answer questions about efforts to rescind the Supreme Court's jurisdiction over certain types of cases, such as those involving school desegregation, saying he did not want to "hazard an answer" without further study.
Under questioning by Sen. Patrick J. Leahy (D-Vt.), Alito said "the Constitution is designed to prevent" what he called the "tragedy of having an innocent person executed." But, unlike Roberts, he stopped short of saying that the Constitution prevents such an execution.
After Alito's hearings concluded about 1 p.m., senators heard from witness panels favoring and opposing the nomination. The panels, which Alito is not attending, are scheduled to end today.
In a first for Supreme Court nomination hearings, seven of Alito's current and former colleagues from the U.S. Court of Appeals for the 3rd Circuit testified on his behalf. Retired judge Timothy Lewis, who sat with Alito for seven years and described himself as "unapologetically pro-choice," said that although he has sometimes disagreed with Alito, "I cannot recall one instance" when "he exhibited anything remotely resembling an ideological bent."
Civil rights leaders and abortion rights advocates are among those scheduled to testify today in opposition to Alito. In prepared texts of their remarks, they characterized his record as being insensitive to women and minorities.