Analysis: Kaiser on Alito Hearings

Second Day of Hearings for Supreme Court Nominee Samuel Alito

Washington Post Associate Editor Robert G. Kaiser was online Tuesday, Jan. 10, at 5 p.m. ET to answer questions and provide analysis of the second day of hearings on Capitol Hill for Supreme Court nominee Samuel A. Alito Jr..

The transcript follows.

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Robert G. Kaiser: Hello again. We've now had nearly eight hours of questions and answers for Judge Alito, and I have to report that the great drama promised yesterday by Arlen Specter, the chairman of the Senate Judiciary Committee, has yet to materialize. I fear it isn't going to. Alito seems to have stymied the Democrats while reassuring the Republicans. On the basis of what we've seen so far, it's hard to see how serious opposition to his nomination can now be mustered.

If my analysis is correct (always a problematic proposition), the liberal interest groups that have been trying to stimulate opposition to Alito will be disappointed. But the Washington Post poll published today suggests that their efforts had already fallen short. Only 27% of those polled said Alito should be rejected.

Why has the drama petered out so quickly? We can discuss this over the next hour or so. I see a few explanations, including:

1) Alito seems smarter and more articulate than his Senate critics. Today's hearing could help a Martian understand why Americans don't hold their Congress in a very high regard these days. No Senator could inject any excitement into the proceedings. Those who set out to poke holes in Alito's armor, especially Sen. Kennedy, failed to do so, it seemed to me.

2) Alito, like now-Chief Justice Roberts before him, shows no appetite for overturning Roe v. Wade, the key decision that legalized abortion in the United States. This is the one step a conservative court could take that would mobilize opposition in the country, in my opinion. But judging by Alito's testimony, it isn't imminent.

This of course could be deceptive, though personally I doubt it is. At the beginning of today's hearing, in response to questions from Specter, Alito seemed to send a strong signal that he would not want to overturn a well-established, oft-restated and well accepted (in the society at large) precedent like Roe.

Please post your questions and comments. And here's a link to the Post poll published today.

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washingtonpost.com: Americans Divided Along Party Lines on Domestic Spying, Poll Shows , ( Post, Jan. 10, 2006 )

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Roanoke, Va.: The Washington Post and other news outlets have reported that Judge Alito is often refrerred to as "Salito" or "Scalia light". Both have a judical record that rules against the well-being of the disabled. Moreover, if appointed,the balance of the Court will be tipped too far to the right, and the decisions this prospective court will make in the coming years will have profound, pervasive, and long-lasting effects. It is inevitable that this prospective Court's impact will have too many segments of American society---reeling.

Robert G. Kaiser: I don't think you're necessarily correct about these predictions, but thanks for posting them.

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Richmond, Va.: Is the nomination of Samuel Alito a positive step for centrist politics in Washington in providing a balance for the Supreme Court, or is he simply a well-spoken conservative mouthpiece that will tip the ideological scale? Cutting through the espoused rhetoric in the hearings: will he be more like a chameleon (changing as it suits himself) or an elephant (a rigid conservative)?

Robert G. Kaiser: You've asked a $64 question, which, after inflation, must be about a $4464 question today. I can't answer it. I again refer readers to the wonderful two-part series that ran Sunday and Monday by Dale Russakoff and Jo Becker. It shows that Alito is a deeply conservative man. He has obviously got conservative politics. But he seems cautious, deliberate. I don't know what to expect from him as a justice, but after today I'm pretty confident we'll soon see him in action in that role.

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washingtonpost.com: A Search for Order, an Answer in the Law , ( Post, Jan. 8, 2006 )

Proving His Mettle in the Reagan Justice Dept. , ( Post, Jan. 9, 2006 )

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Kensington, Md.: On the reported disconnect between activist opposition to Alito and the public's seemingly tepid temperament, I'd like to offer an alternative take: disempowerment fatigue. By most accounts this administration has governed far to the right of most Republican voters. Between a transparently deceit-based war engineered on behalf of the President's corporate sponsors, a Congress visibly in the pocket of corporate lobbyists, and an energy bill that defied all sense of decency and logic, people feel their government is beyond repair. Robber barons have taken hold of it once again, with agents like Alito there to help entrench their power. We are essentially helpless. We can only wait for the whole corrupt system to collapse under its own depravity. Cynical and fatalistic perhaps, but I think it has some validity.

Robert G. Kaiser: And thanks for this...

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Modesto, Calif.: Mr. Kaiser, thank you very much for the chat. When Senators discuss the "constitutionally protected right to an abortion," what part of the constitution are they referring to? I think Judge Alito made a pretty fair claim that abortion is not necessarily protected by our Constitution. I am Pro Choice but it seems to me that no part of the Constitution addresses abortion, nor does it allude to protecting rights of that nature. Quite frankly, I think the Founding Fathers would be appalled at the issues our government takes up nowadays.

Robert G. Kaiser: Ahh, the glories of the law. As I (NOT a lawyer!) understand it, Roe found constitutional protection for a woman's right to choose rooted in an implicit right to privacy found in the 5th and 14th ammendments to the constitution and perhaps elsewhere. Later decisions that upheld Roe reiterated the basic idea that there is a constiutional right here. This of course remains controversial among scholars and lay persons too. Lots of pro-choice Americans are nervous about relying on this sort of constitutional interpretation, a nervousness I certainly understand.

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Minneapolis, Minn.: Today The Post reports (on page A6) that the American public is indifferent to the confirmation hearings. To what extent does The Post share responsibility for that? Has the newspaper done the job in drawing connections between Alito's views on executive power and recent actions by the administration?

I'll give you an example: The Post splashed the story last week that Alito authored a Reagan-era memo encouraging presidents to present "signing statements" offering their own interpretations of legislation. What the Post failed to report was that the President did exactly that on December 29 -- issuing a signing statement arguing that the McCain torture bill means whatever the President wants it to. McCain and his GOP co-sponsors were outraged. And yet the newspaper failed to report the story.

Conservatives and liberals alike would be outraged by Alito's views on executive power -- if they only knew.

Robert G. Kaiser: Thanks for posting. I was in Boston last week and read about the president's "signing statement" that seemed to back away from the ban on torture in the Boston Globe, which covered it well in two stories. Your posting made me check to see what The Post had done on this story, and discovered to my embarassment that you are right, we missed this holiday-weekend story. Bad. We're now on the case.

That said, I don't think you can blame the Post, or the media more generally, for what is happening to the Alito nomination. The Post poll referred to, and linked to, above is revealing. Have a good look at it.

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Tysons Corner, Va.: Alito is handing the Senators their hats, isn't he? This "contest" was over yesterday, after Sen. Kennedy read his over-the-top statement/indictment, and Alito sat calmly until it was his turn. At that point, he addressed the Senate with much more respect than some of them had shown him in their opening statements. No nasty innuendo, not-too-subtle jabs about THIER integrity. Of course, the Senators aren't the ones on the hot seat, so to speak, but of course they ARE in the public eye again, and they don't look too good. By contrast, Alito was gracious and articulate. It took all of about 15 seconds to figure out that he was going to "stymie" them, not by avoiding questions, but by answering them articulately, thereby showing an impressive command of Constitutional law. It's all over but the final vote.

Robert G. Kaiser: Thanks for posting. Did I misspell stymie? Alas, spelling is not my strong soot.

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Lancaster, Pa.: I thought Joe Biden had Alito dancing a little today with respect to Alito's record on workplace discrimination.

Do you agree?

The line of questioning by Biden was probably a little esoteric for most people, but I have to give props to a fellow S.U. Law alum when I am able.

Robert G. Kaiser: Fair point. I have had the sense all day that Alito is a bit of an ivory-tower intellectual; Biden did seem to be trying to yank him back to reality, and at one point Alito told him he "had a point," as I recall.

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American Fork, Utah: When you write that Judge Alito is smarter than the Senators questioning him, do you mean that he is clever enough to avoid making damaging statements in response to their questions, or that he has a better grasp of the issues and comes across as more knowledgeable and articulate?

Robert G. Kaiser: I said that today he seemed to be smarter, and I meant the latter of your two definitions or explanations of the term. I am not in a position to declare him smarter, only to say that he looked that way today.

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Albany, N.Y.: Alito did not recuse himself from the Vanguard case in 2002. However, in 1992, he voted to remove Judge Sarokin from Haines v. Liggett Group, and in 1992 he voted to remove Judge Kelly from a class-action asbestos case. Judge Becker, in an opinion joined in by Alito, wrote that "-a]lthough we believe that Judge Kelly acted with integrity at all times, we also believe that the circumstances surrounding his attendance at -a plaintiffs-oriented] conference created an appearance of partiality that required disqualification."

Maybe it's just me, but it seems that attending a conference is much less likely to result in suspicions of partiality than not recusing yourself from a case involving a company in which you have a six-figure investment.

Has anybody on the Senate Judiciary Committee been unkind enough to raise this issue?

Robert G. Kaiser: No one has raised it. I don't know anything about the Sarokin and Kelly cases, but I have satisfied myself today that the Vanguard case does not raise any serious ethical issue regarding Alito. He hadn't invested money in Vanguard, he had bought shares of Vanguard mutual funds. The case he heard did not cost Vanguard any money, it was a dispute about which of two people Vanguard owed money to--it would pay one or the other. I find his answers today on this subject to be persuasive. More important, so do a lot of legal ethics experts.

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San Antonio, Tex.: What do you make of Judge Alito's body language? Does he seem comfortable or do you feel he's holding back? I really think that he would like to slug it out with these bozos.

Robert G. Kaiser: I've been thinking about body language all day. He doesn't have the utterly confident body language of Justice Roberts, but he seems comfortable in his own skin. His old pals describe him as a nerd; that's how he comes across to me too: the smartest guy in the class, but not arrogant about it. He knows he's smart, but he's patient with others, and I think he works hard toa void looking arrogant.

I think he knows he is doing well, and therefore doesn't have to control an urge to throw a punch. Nothing I've read suggeests to me that he's a punch thrower anyhow.

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Ashland, Mo.: Don't Judge Alito's critics put too much emphasis on the power of the Supreme Court? As Presidents Jackson and Lincoln, among others, demonstrated, the Court can be ignored. Protection for the public can only be ensured by vibrant political branches committed to the public welfare. At best, the Court can declare the law. But if President Eisenhower did not send troops to Little Rock and the Congress did not pass the Civil Rights Acts, Brown v. Board would be less remembered. In fact, the emphasis on the Court denigrates the responsibility of Congress and the President to the public welfare, permits those branches of government to evade responsibility, and diminishes the public's own sense that electing good public officials makes a difference because, it is erroneously assumed, we can all rely on the Court.

Robert G. Kaiser: Thanks for a provocative, interesting comment.

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Boston, Mass.: Thanks for taking the time to answer questions. I was wondering, what do you think the chances are of Alito experiencing the centrist (or leftist--depending on where you start) drift that some other Republican nominated Justices have gone through?

Robert G. Kaiser: Can't predict. I am convinced that he is a very conservative fellow, but I don't see him as a Scalia. He seems by instinct collegial, collaborative, etc. Scalia is none of those things.

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Chicago, Ill.: Under what circumstances would the Democrats filibuster Alito? If filibuster is not a real possibility, how can Alito not be confirmed?

Robert G. Kaiser: I don't know what the circumstances might be, but I do know that they aren't present yet.

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Anonymous: Hi, Robert. Why, oh why, are the Democrats so easily deflated? It seems here we have a unique case in a candidate who not only leans to the right, but who reportedly shows little variation in his judgements. Right-leaning justices at some points vote to the left, and vice versa. From what I've read, Alito always, always, votes to the right. Can't Democrats point to that as a clear signal that this appointment would be filling a centrist seat on a court that had previously been balanced?

Robert G. Kaiser: I think you've oversimplified Alito's record; he isn't the Johnny One Note you describe. But he is a very conservative guy, for sure. His votes on the court won't please liberals, I confidently predict.Why Democrats are so easily deflated is beyond my expertise, I think.

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Washington, D.C.: So why don't we liberals care enough about Alito to turn the air blue? This one doesn't care enough because I think compared with the clear and present dangers presented by this administration's visions (of grandeur) and its smallmindedness and dishonesty, and by this Congress's venality and spinelessness, having one more thoughtful, careful, honest, and--yes--very conservative justice added to the Supreme Court doesn't seem so terrible.

Robert G. Kaiser: Thanks.

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Malvern, Pa.: Is there any sense that we conduct these hearings backwards? Let the interest groups testify (ABA, Think Tanks, Law Profs) talk about the credentials and then have the nominee come up. It seems we get Senators putting on a show and learn nothing of the nominee

Robert G. Kaiser: Well, I agree with your second point, but wonder how putting interest groups (whose positions are already well known and not surprising) on first would make a difference?

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Herndon, Va. re: Alito smarter than Senators: I agree that Judge Alito seems smarter than the Senators (I do believe he is very intelligent), but I think that has a lot to do with the extremely partisan statements both parties must make. Republicans ask easy "Did you enjoy ROTC" questions while Democrats must simply attack. There are a number of highly intelligent Senators in the room but you would never know it based on the canned/lame/partisan questions and comments they sputter out.

Robert G. Kaiser: thanks for the comment.

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Charlottesville, Va.: Are you disappointed that Harriet Miers did not make it to the hearings? How many barrels of monkeys worth of fun would that have been?

Robert G. Kaiser: Very disappointed.

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Kensington, Md.: How successful do you think the GOP's "judicial activism" red herring still is these days? It's been shown recently that conservative judges are just as activist, but in the other direction. Yet the GOP soundbox obviously still feels the meme might work. Does it still resonate?

Robert G. Kaiser: I think "activist judge" is an effective negative label, yes. And I agree with you that activism can appear from liberal or conservative judges. I predict with some confidence that our grandchildren will read about Bush v. Gore as a remarkable example of judicial activitsm, for example.

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Oklahoma City, Okla.: Taking the broad view of Supreme Court appointment reviews in the Senate goind back to Bork, there's a clear and disturbing pattern: liberal Demcocrats demand quick and mininal questioning and prompt confirmation of liberal appointees, but insist on virtual blood tests fo conservatives. Essentially, they are saying that Democratic presidents should be free to appoint liberal justices, while Republican presidents can expect heel-dragging oppposition unless they appoint -- liberals. A fascinating double standard, isn't it? One need only recall the overwhelmingly bipartisan confirmation vote for Ruth Bader Ginsburg to see how glaring this is.

Robert G. Kaiser: By my lights today's hearing undermines your analysis, but thanks for posting.

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Santa Fe, N.M.: Why should a Senator have to inject "excitement" into a Senate hearing in order to hold public attention? Isn't the fact that we may have an "imperial" Presidency enough to hold attention to the man who may lead the coronation? A man, who, perhaps, does not hold to the doctrine of separation of powers?

Robert G. Kaiser: I've seen no evidence that Alito doesn't respect the separation of powers. Do you? What is it?

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Indianapolis, Ind.: It seems to me that two cases stand out as important dissents by Judge Alito. First the Casey decision, where he articulates a reasonable argument that the provision of the law being deemed unconstitutional, was in fact not an undue burden. The argument is steeped in basic statistics, and a reasonably accurate interpretation of the 'escape' clauses present in the law as an almost guaranteed 'way out' for women interested. That makes sense to me legally and also meets a 'common sense' bar. What doesn't meet these criteria is the decision allowing a strip-search on a ten year old girl. His reasoning in this case is basically that such a search is not explicitly forbidden by law. But judges should never lose the ability to exercise common sense, especially on the Supreme Court. I personally don't think judge Alito would move too aggressively to overturn Roe v. Wade for my taste, but his 'home base' seems to allow the government too much power. It is this issue where I think judge Alito doesn't have the right temperament for the job.

Robert G. Kaiser: Thanks for your thoughtful comment.

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Cullman, Ala.: If a matter is constitutional or not, why do we not have more 9-0 decisions by the U.S. Supreme Court? I am well aware of broad and strict constructionist but it just seems to me more decisions should be unanimous. I think of all the 5-4 decisions of the Court and ponder the swing vote and its impact on U.S. History. Your comment please.

Robert G. Kaiser: Now THAT's a good question. Americans are nervous with the fact that, as Peter Finley Dunne's Mr. Dooley pointed out more than a hundred years ago, the Supreme Court also follows the election returns. By which he meant, Supreme Court justices are political animals, often deeply engaged in politics. [Footnote: Bush v. Gore]. And Constitutional law is by its nature, very political.

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Big Stone Gap, Va.: Mr. Kaiser, thanks for a great chat! While I never bought into the idea that Harriet Miers was intellectually unable to handle these hearings, I'm curious to get your views on how well you think she would have handled intense questioning.

Robert G. Kaiser: Geez I have no idea. I don't feel I got to know very much about her at all.

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Bloomington, Ill.: When he is finally confirmed by the Senate what do you feel will be Alito's final yes/no totals? Will he get 75 yes votes?

Robert G. Kaiser: Depends, I think, on how the Democrats play the game after the hearings. Too soon to make a prediction.

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Birmingham, Ala.: I wonder if the reason Americans seem to accept Alito is the fact that while he is a high powered individual, he seems more like a common type guy. I personnaly identify with his love of baseball. I wonder how you can be a radical when you love a game the vast majority of fans hate to see anybody tinker with it. As silly as this may sound and I am sure this will absolutely bother those who oppose his nomination, I don't feel threatened that he is going to take us back to the "stone age" because of this. I guess I will accept the charge of being a shallow individual.

Robert G. Kaiser: Thanks for your courageous posting! Of course, it was anonymous. But I liked it.

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Arlington, Va.: First of all, your coverage of the Alito hearings is first-rate; keep it up. We all need clarity. What is less than clear is the appearance of impropriety by Judge Alito in hearing the Vanguard case. He says he went beyond the ethics rules; that he would have kepe that standard were it not for an oversight by the clerks. And yet he agreed to hear a case that clearly involved a company to which he had recused himself. Could you help clarify the allegations against him? Thanks.

Robert G. Kaiser: He says today that he simply forgot, about 15 years after the fact, that he had agreed to recuse himself from all cases involving Vanguard when this unusual case came before him. Is he a liar? I can't say he isn't, but I can't persuade myself that he is, either.

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Lancaster, Pa.: Yes! I seem to recall Alito saying something to that effect as well. Anytime an appellate court judge concedes a point during oral argument, it's a win from my perspective.

Something that was dramatically obvious is that Alito's showed that he was not going to be John Roberts, which is a good thing because no one else is John Roberts. His testimony and confident composure (not to mention intellect) was a privilege to witness.

Robert G. Kaiser: Thanks for posting.

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Miramar, Fla.: I remember reading somewhere before the 2000 election that there were three Republican objectives: Control of the Congress, control of the Supreme Court and control of the White House. I guess they've accomplished their goals, haven't they?

Robert G. Kaiser: Those objectives have been accomplished, yes--some time ago.

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West Bloomfield, Mich.: Yesterday on your Live Chat you said that the Democrats' threats to oppose the President's Supreme COurt nominees were "a first" and that Senate Republicans went along with President Clinton's two Supreme Court nominations with no fuss (I'm paraphrasing). But my recollection is that President Clinton consulted with Senate Republicans in advance and cleared both of his nominees - Breyer and Ginsburg - with them in advance of announcing either nomination. President Bush has refused to engage in such bipartisan consultation with the Senate, no? And if I'm remembering correctly, isn't that the real "first" about this situation?

Robert G. Kaiser: You have overstated what I said yesterday, but I won't sue you. Bush did talk to senators before he picked Harriet M, even had a recommendation from Sen. Reid, the Demcoratic leader, to pick her. So the situation isn't as stark as you suggest.

It does seem ironic to me that after naming her out of fear, I think, of appointing a more obvious conservative, Bush appointed an obvious conservative (Alito) who is going to coast to confirmation. I think.

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The Woodlands, Tex.: Do you think that this hot-button topic of Executive Power, popular in one instance with Sen. Kennedy, is rooted in dislike with the current President? Judge Alito's conservative views about Executive Power seem to be long-stemmed, from his early law days, not merely when there is someone in the Executive branch with which he did not agree. It does not seem like if the President was a Democrat this would be such a popular issue.

Robert G. Kaiser: Well I think it's more complicated than you suggest. Bush is not only a Republican, he's a Republican who has been determined for five years to expand presidential power, often at the expense of Congress. This has gotten the attention of Congressional Democrats--and some Republicans too.

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Boulder, Colo.: What do you make of comments by Senators concerning the importance of the fact that the seat Alito would be filling is Sandy's "swing" seat? Does this line of thinking, where some sort of ideological balance has to be maintained, have a historical pedigree? For example, did many Republicans bring it up when Ruth Bader Ginsburg was replacing Byron White?

Robert G. Kaiser: O'Connor became a swing vote in the '90s, I think it was. Her role was very unusual in the court's history. Some of the comments we've heard in these hearings make it sound like she occupied a designated "swing" seat, but that's silly. She was a conservative Goldwater Republican when she began; she grew and changed on the court, as many justices do. There is no historical basis for expecting an ideological balance on the court that I am aware of.

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Albany, N.Y.: RE: Vanguard and recusal

I just did the unthinkable and actually looked up the law on recusal. It looks like the legal scholars are right. He're what the applicable section (28 U.S.C. 455) says:

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

...(4) He knows that he...has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding...

(d) For the purposes of this section the following words or phrases shall have the meaning indicated:

(4) "financial interest" means ownership of a legal or equitable interest, however small, or a relationship as director, adviser, or other active participant in the affairs of a party, except that:

(i) Ownership in a mutual or common investment fund that holds securities is not a "financial interest" in such securities unless the judge participates in the management of the fund...

Robert G. Kaiser: Thanks for posting. I hope you've quoted the whole thing!

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Washington, D.C.: I have seen mention of a question asked to Alito of "did you ever side with the victim of discrimination?" and I can't seem to find his answer. Do you know where I could?

I admit even as a pro-choice person I am more concerned about Alito's total corporate bent and little support of workers.

Robert G. Kaiser: You can read the entire transcript of the hearings right here on washingtonpost.com.

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Mahwah, N.J.: There are many important issues,constitutional and otherwise, our country must deal with. How is it, then, that the abortion issue, which I recognize is an important issue, always manages to dominate the other issues? It's as if the abortion issue holds the national debate hostage.

Robert G. Kaiser: Well, I'm not sure about this, but I think the answer may be simple: an unwanted pregnancy is something that happens in every family, something most Americans have personal experience of, directly or indirectly. At the same time, the sanctity of life is a concept that many millions of Americans take personally, feel intensely about. The combination of these two facts makes abortion a vividly real issue in a way that most legal issues, often abstract and obtuse, cannot be. That's my theory off the top of my head, anyhow. I'd welcome other explanations.

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Robert G. Kaiser: That's it for today. Thanks to all for taking part. David Von Drehle will be here tomorrow at 5 to discuss Wednesday's hearing.

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