New Justice's First Challenge: Clap On or Clap Off?

Justice Samuel A. Alito Jr. greets members of Congress as he enters the House floor for the State of the Union address.
Justice Samuel A. Alito Jr. greets members of Congress as he enters the House floor for the State of the Union address. (By Melina Mara -- The Washington Post)
By Dana Milbank
Wednesday, February 1, 2006

Samuel A. Alito Jr., barely eight hours into his job as a Supreme Court justice, had to make a series of important rulings as he sat in the House chamber for last night's State of the Union address.

For instance: How enthusiastically would he applaud for President Bush? (More vigorously than Justice Stephen G. Breyer but less than Justice Clarence Thomas and about the same as the chief, John G. Roberts Jr.)

And: How would he react when Bush introduced him to Congress? (He would make a self-conscious grin.)

For the four robed justices brave enough to attend the largely political event, and Alito in particular, it was a balancing act as challenging as any scales of justice. Earlier yesterday, Alito was confirmed to succeed Sandra Day O'Connor after a debate and vote that left both sides bitter. After a hasty swearing-in and donning of the robe, Alito had to take a front-row seat in the center of a chamber as divided as it ever has been by partisan rancor.

If Alito and his peers were being extra cautious, that was understandable. Yesterday's rare overlap of a State of the Union address and a Supreme Court confirmation could have been a celebration of democracy. Instead, the anger from the confirmation process spread through the body politic, leaving a brittle, divided House.

Alito began tentatively. As the justices were announced, he listed to the Republican side of the aisle as he made his entrance and barely glanced toward the Democrats. He stood awkwardly next to Breyer, a Clinton appointee, making occasional small talk as he waited for the speech to start. When Bush entered and shook the new justice's hand, howls of approval poured from the GOP side.

At times, Alito followed the lead of the other three justices who sat with him in the front row. When Bush said "We love our freedom, and we will fight to keep it," Thomas looked at Roberts, who looked at Breyer, who gave an approving shrug; all four gentlemen stood and gave unanimous applause.

At other times, Alito showed independence from his senior colleagues. When Bush delivered the stock line "The state of our union is strong," Alito dissented while the other three robed justices in the front row applauded. When Bush declared that "liberty is the right and hope of all humanity," Alito was the only member of the judicial quartet to provide his concurring applause.

It seemed from their frequent conferences that the justices had agreed on some ground rules: Any mention of Iraq or hot domestic disputes were off limits; broad appeals to patriotism were deemed applause-worthy. But there were disputes. When Bush said "We will never surrender to evil," the justices conferred briefly. Breyer shook his head, but Roberts overruled him, and Breyer reluctantly stood with his three colleagues.

Earlier in the day, minutes after Alito's confirmation, Senate Majority Whip Mitch McConnell (R-Ky.) rushed to the Senate television studio to declare it "a happy day for the United States Senate." But instead of happy faces, the Republican senators lined up behind McConnell wore the grave expressions of sore winners.

Sen. Orrin G. Hatch (Utah) said Alito had "been treated in a despicable fashion." He added: "We should get rid of this really repugnant partisanship."

Sen. Jeff Sessions (Ala.) took off after Democratic "divisiveness" and the party's allegiance to "outside, activist, hard-left groups."

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