Analysis: Von Drehle on Alito Hearings

Third Day of Hearings for Supreme Court Nominee Samuel Alito

Washington Post Magazine staff writer David Von Drehle was online Wednesday, Jan. 11, at 5 p.m. ET to answer questions and provide analysis of the third day of hearings on Capitol Hill for Supreme Court nominee Samuel A. Alito Jr. .

The transcript follows.

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David Von Drehle: Howdy, and welcome.

They're still talking, but we're going to get busy talking about their talking. It looks as though the Democrats would like to have a third round of questions, but Chairman Arlen Specter didn't appear to be too crazy about that idea.

The saying goes, it ain't over 'til it's over. But there are a couple of signs that hint to me that the Alito Challenge is winding down with Alito alive and well and headed for the High Court.

One sign: Sen. Diane Feinstein (D-Cal.) appeared to me to have a good line of questioning going on the wedge issue of Roe v. Wade. She homed in on the strongest element of Chief Justice John Roberts's recent testimony. Roberts gave a nuanced explanation for why the right to abortion is "settled" as a constitutional issue. She challenged Alito to go that far. But no sooner had he started to wriggle than she said, "I'll let you off the hook."

Second sign: Some of the senators have left off with their partisan bickering to take up their favorite bipartisan theme--complaints about the Supreme Court disrespecting Congress. That says to me that Alito will soon take Justice O'Connor's place.

But let's go to your comments and questions.

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Seattle, Wash.: How realistic is the expectation that a Supreme Court Judge should decide cases independently of their personal values? Are there some who stay substantially clear of their prejudices? Or is it simply impossible not to find your heart's desire somewhere in the complexity of the law, if only unconsciously? My question goes beyond the matter of judicial temperament(original intent etc.), I think.

David Von Drehle: This is a wonderful question that goes to the core of the concept of objectivity--a question the great philosophers have not settled, so I certainly can't.

But history shows that there is not always a direct path from a judge's desires to his or her rulings. A favorite example of mine, from fairly recent history, involves a case in which the Supreme Court considered overturning the famous Miranda case, which created the famous "you have the right to remain silent" speech.

Then-Chief Justice William Rehnquist had been complaining about the Miranda ruling from the day it was published--more than 30 years of complaining. And yet, he wound up writing the opinion that reaffirmed Miranda's holding. Clearly, it was possible for him to rule in a way different from his personal impulse, for reasons that he laid out in his opinion.

That's just one example.

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Washington, D.C.: David, would you agree that Alito goes a long way?

David Von Drehle: Ha!

I'll certainly agree that Alito of these senators is enough for me.

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Minneapolis, Minn.: Hi there! Thanks for doing this! My question is a more general type....In my opinion the media is treating the confirmation hearing and all its controversies as a "contest" between two "teams", Democrats and Republicans. Shouldn't a noble institution entrusted with informing the public and thus helping to safeguard our Democracy be more than just a bystander in this debate? This is not a sporting event whereby all you (the media) have to do is report the score. Decisions emanating from this debate will also affect you, so why treat it like you (the media) have no stake in it?

David Von Drehle: It would easier to treat the hearings in the way you suggest if the key players would do so. The Democrats on the panel have spent hours plowing into a supposed ethical lapse--in the Vanguard case--that was fully dealt with in the questionnaire. Meanwhile, several Republican senators have used their time to shill for Alito and attack their Democratic colleagues. Truly substantive and sincere questions have been few and far between.

Meanwhile,The Post and other papers have spent a couple of months trying to give our readers a rounded a portrait as we can of Judge Alito. So it's their food fight, not ours.

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Washington, D.C.: While Sen. Kennedy's desire to subpoena the Princeton CAP records make sense within the context of his argument, isn't it bad idea within Kennedy's own sense of civil liberties? He wants access to all CAP records, including membership and financial records -- including contributor lists. This would open up for review the internal records of any "political" group to which a nominee belongs or had belonged. So, if a future Ruth Bader Ginsburg were nominated, there would be a "precedent" to subpoena all records of the ACLU, including internal correspondence and financial records, subject (perhaps) only to attorney-client privilege exclusions. Am I missing something here?

David Von Drehle: For anyone who might have missed it: Sen. Edward M. Kennedy surprised the chairman by asking for a subpoena to examine the private papers of the renowned conservative publisher William Rusher--papers that are under seal at the Library of Congress.

A single phone call to Rusher apparently secured permission for the Committee to see the papers, which include some records of the Concerned Alumni of Princeton. So apparently it was a tempest in a teapot.

Why would a veteran senator spring the bombshell of a subpoena when a mere phone call would suffice? That's the question I'd like to ask.

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Columbia, Md.: I don't see how anyone can doubt that Judge Alito, when he joins the Court, will join a Scalia-led new majority that will: erode and ultimately overturn Roe v. Wade; uphold the doctrine of unitary executive power, under which the president is under no Constitutional constraints as long as he claims that what he does is in defense of national security; and undo the protections against discrimination on the basis of race, religion, gender and sexual orientation that have been so painfully and painstakingly been constructed over the past fifty years.

David Von Drehle: Wow.

The very concept of "a Scalia-led majority" is a bit hard to swallow. For 19 years, Scalia seems to have operated on the principle that he would never be a member of any majority that would have him.

I'd be surprised to see the Court move so far. But time will tell.

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Alexandria, Va.: Someone asked Kaiser yesterday that "If a matter is constitutional or not, why do we not have more 9-0 decisions by the U.S. Supreme Court?"

I think the answer to that is relatively simple. Unanimous court rulings occur when there is a broad consensus on the issue at hand on the Supreme Court and the lower courts as well. With such a consensus, cases that would be decided 9-0 never even reach the court.

It is the same with the phrase that no easy decision ever makes it to the President's desk. That is because the easy stuff is decided at a lower level.

David Von Drehle: Thank you for this succinct improvement on Kaiser's answer. I can't tell you how often you would come in handy around the office here.

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Reston, Va.: What is the point of a confirmation hearing supposed to be? It seems to me the Senators from one side of the aisle heap praise on the nominee, while the Senators from the other side make crazy accusations, and the nominee refuses to comment on anything because the issue might come before the court in the future. Are we supposed to learn anything from this?

David Von Drehle: For much of our history we didn't have hearings on justices.

I can't answer your question, except to say that there may be some value for citizens in seeing these figures, who will soon be cloistered and mysterious, thinking and talking. I usually find that friends and family come away impressed by the brainpower of these nominees--both the liberals, like Ginsburg and Breyer, and the conservatives.

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What about Mrs. Alito leaving upset?: Just heard on CNN -- anyone know what's up?

David Von Drehle: Anybody know anything about this?

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College Park, Md.: Could Alito's membership or participation in Princeton's CAP be a smoking gun? Why would someone cite the organization in a high-profile job application if they didn't have an active and proud role in it?

David Von Drehle: We're hearing a lot about CAP, which was one of a series of groups formed in the 1970s to advance "conservative" ideas at Ivy League schools. I remember reading a lot of articles about such a group at Dartmouth, for example. Some interesting people came out of this movement -- Dinesh D'Souza comes to mind. But there was a lot of creepy adolescent racism, sexism, etc. associated with the groups as well.

My guess is that Alito knew that then Attorney General Edwin Meese was, if I remember correctly, involved with this movement before he joined the Cabinet. So Alito mentioned it.

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Seattle, Wash.: In this partisan atmosphere some judges are tarred as activist, others lauded for their pure legal objectivity. The Rehnquist Miranda example could be extraordinary and unrepresentative. But for day to day court watchers (not me) I wonder what the reality is around the issue of determinations distant from political leanings. e.g. "Oh, there are a few outliers who decide on their politics but most are pretty honest?

David Von Drehle: Well, I don't know. It's a good question. The middle ground here is that politics in the United States has always included some very principled differences about the meanings of the Constitution and the way it should be applied to various conflicts. So when two justices differ on a particular question, you could say they are differing over Constitutional interpretation -- a positive spin -- or that they are differing over politics -- a negative spin. And both might be equally true.

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Troy, Mich.: How important is the CAP controversy...really? There is a real question in my mind that anyone who does an end round from his past is probably hiding something. A change of belief from ones youth is often a sign of character growth and should be acknowledged. However, Judge Alito seems to have a very bad memory concerning his college years. I remember mine like they were yesterday.

David Von Drehle:

I like to remember my Rhodes Scholarship and my Heisman trophy ...

What Alito has said is that he joined the group because he thought they were going to protest the ousting of ROTC from Princeton, and he didn't spend much time following their pronouncements or activities. Which is more of an off-tackle that an end-run.

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Columbia, Md.: Meese was Yale '53. But, no doubt, simpatico to CAP's agenda. Probably, Buckley was organizing the same kind of operation for the Eli's.

David Von Drehle: I didn't mean to suggest that Meese was behind CAP specifically. Instead, I think he was an endorser of the movement generally to create and advance conservative groups on leading campuses. Rusher, a key figure, was, of course, very close to Buckley--together they ran National Review.

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Ocala, Fla.: As a huge supporter of the Democratic Leadership Council, I would like to know why we continue to allow Senators like Ted Kennedy and Chuck Shumer to make these hearings about promoting themselves instead of asking relevant questions. In your opinion, is Senator Kennedy just trying to make the nightly news or was his request relevant? I don't see how those papers could reflect on the candidate.

David Von Drehle: Just posting.

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Philadelphia, Pa.: You mentioned the Vanguard issue.

I cannot understand why this issue has received such attention now and at the time Judge Alito was nominated to the Court of Appeals.

As I understand it, he has invested in Vanguard mutual Funds. If that's his only link to Vanguard, I have doubts about whether there is a conflict of interest requiring his recusal.

If so, many other federal judges must have to recuse themselves from cases involving mutual fund companies.

Can you provide any light about how this controversy arose originally?

David Von Drehle: His only involvement was investments in Vanguard funds. And here let me disclose my conflict, because I also have investments in Vanguard funds. Millions of people have investments in Vanguard funds.

The question is why he neglected his promise to recuse from Vanguard-related cases. What's beyond question is that rules for federal judges do NOT require them to recuse when their only interest is a mutual fund investment. Nor has anyone suggested that Alito could have benefited from his opinion one way or the other.

The reason it came to light, as I understand it, is that one of the parties, who lost her suit, learned of Alito's pledge and complained. He apologized for the error, recused himself, called for a new panel. And that panel reached the same result.

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Arlington, Va.: Responding to the response to the question someone asked Kaiser yesterday ("If a matter is constitutional or not, why do we not have more 9-0 decisions by the U.S. Supreme Court?"): aren't nearly half the Supreme Court opinions issued 9-0? And many of the closer ones are not on constitutional issues but statutory ones.

David Von Drehle: This sounds reasonable to me, but I don't have the data at my fingertips. Most of the 9-0s are never really written about because they don't involve great controversy.

At the same time, my sense is that we are in an era of split decisions -- perhaps partly because the Court takes far fewer cases than it did in the 1970s and 1980s. The ones that do come up may be, as a result, closer questions.

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Dover, Del.: I've heard some pundits speculate that Alito's ascension to the Supreme Court could actually benefit Democrats in the long run because a decision to overturn Roe v. Wade would galvanize young voters - particularly young women - to vote against Republicans.

Any thoughts on that?

David Von Drehle: I have believed, and even written, that IF Republican nominees took the step of overturning the right to abortion (and I think this is unlikely) it would be a great thing for the Democrats. Abortion would continue to be legal in many states, so the actual impact would be limited. Meanwhile, the Democrats would have a strong issue around which to rebuild their badly neglected grassroots.

For this reason, I do not believe their is a political conspiracy in the GOP to overturn Roe. They love to talk about it, but most don't really want to do it.

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Orono, Maine: Why have the Democrats backed off from what would seem to be their most powerful argument: that Alito is essentially Bush's second choice and that he was picked because Miers couldn't pass the right wing's litmus test?

That argument was previewed yesterday, but no one has gotten back to it. It seems like it is in am important line of attack because it's one that is very easy for the public to understand. In my view, the parsing of judicial decisions plays right into the hands of Alito plays right into the hands of Alito's supporters. It's so technical, that few people people are likely to really pay enough attention to figure out what it all means.

David Von Drehle: I agree that the Democratic line of attack has seemed unfocused.

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Columbia, Md.: It's not the failure to recuse. It's the failure to live up to the pledge he volunteered. As you say, he didn't have to recuse; he could have said, "If a Vanguard case arises I will follow the law." Instead he promised to recuse. Then gave as an excuse "computer failure". Pretty lame, I'd say. And cavalier.

David Von Drehle: Thanks for a nice, tight framing of the issue.

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Alexandria, Va.: This confirmation hearing makes it appear that the Roe decision is quite a poisonous decision. I can't help but get the feeling that Senators will spend the week asking questions whose answers will make no impact on their decisions to support Alito or not. They will vote on how they believe he would rule on Roe, while using the CAP/Vanguard/Federalism/Not answering questions/(pick your topic) as a pretext to block the nomination.

This is a real tragedy, since issues of Executive Power, federalism, searches and seizures, discrimination, securities regulation, interstate commerce, etc. are much more relevant to our daily lives. Roe is one issue, but it seems to be the only one right now.

Am I reading this wrong? How did we get here?

David Von Drehle: I don't think you are far wrong.

Roe was quite a moment in our history. It was an abomination to some, a banner day for others and--most Constitutional scholars are coming to agree--a poorly constructed opinion. I imagine part of the reason Roe's opponents became so well organized was that they felt such a weak piece of reasoning could easily be undone. And perhaps the reason Roe's supporters organized so effectively is that they knew it would take a lot of hard work to shore up the precedent.

In Constitutional terms, as Chief Justice Roberts explained at his confirmation hearings, the right to an abortion is far more firmly built today than it was in Roe. But we're left with these well-organized groups. They were built to fight this fight, so they keep fighting it, over and over.

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Charlotte, N.C.: CAP and Vanguard are going nowhere. In your opinion, is there anything that could derail Alito?

David Von Drehle: Frankly, I can't see it.

Evidently, Alito's opponents decided they could not make the plainspoken argument that they just don't like the way he thinks about things. So they had to try the side doors, and they all turned out to be locked.

Does anyone see something I'm missing?

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Washington, D.C.: I've heard talk of a possible Senate filibuster, and Bush seemed to reference this when he said Alito should get "an up or down vote." What's the likelihood that the Dems will go this far? What would be the political downsides to filibustering Alito?

David Von Drehle: I'd be surprised to see a filibuster.

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Fairfax County, Va.: Hi, I'm a woman who went to Princeton in the 80s. As far as I know, Concerned Alumni of Princeton, founded in the late 1960s, was nothing more or less than a vehicle for expressing shock at coeducation (the first coed class entered in 1969). Having women attend on an equal footing with men may seem ordinary now but it was an earthquake then. This was much bigger than admitting minorities. It would have been strange had there been no response to "the world turned upside down."

Later, CAP did morph into a conservative alumni group with a larger focus, and that's when Dinesh D'Souza worked as the managing editor of its magazine, Prospect. It always tickled me that a group with its origins in the Princeton of the past would hire someone with a name that ethnic. I guess even CAP moved (slightly) with the times.

David Von Drehle: Thanks for the data!

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American Fork, Utah: A notion I've seen often, and that was repeated in yesterday's chat, is that Justices 'grow' over time. I'm all for getting better, but I notice it's always Republican nominees that grow over time. Is there any evidence that Demoncratic nominees have 'grown' in office? Or is the presumption that they're already fully mature upon appointment?

David Von Drehle: With all due respect to Kaiser, I share your distaste for the trope of justices "growing" in office.

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Las Cruces, N.M.: I am a democrat and think Alito is being evasive. But, as much as I love him, I think Senator Kennedy was out of line the way he talked to Senator Spector.

David Von Drehle: Thanks for the post.

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Fairfax, Va.: Why aren't Democrats using their national air time to explicitly spell out what is at stake with a right wing conservative Court and then mount a filibuster on the basis of their opposition to the right wing agenda Alito's confirmation would ensure? Why aren't they saying in plain English how people will be harmed by the conversion of 5-4 split decisions under O'Connor to 6-3 right wing decisions under Alito? The filibuster "compromise" turns out to have been a one-sided sellout so what do the Democrats have to lose by fighting back?

David Von Drehle: You got me. I expected more of that, and instead got hours and hours of Vanguard and CAP.

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Boston, Mass.: You're not missing anything - Alito will be confirmed - the Dems are the party that can't say no to anything whatsoever without agonizing about whether some swing voter in Ohio might question its patriotism.

David Von Drehle: Thanks for posting.

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Washington, D.C.: While Sen. Kennedy's desire to subpoena the Princeton CAP records make sense within the context of his argument, isn't it bad idea within Kennedy's own sense of civil liberties? He wants access to all CAP records, including membership and financial records -- including contributor lists. This would open up for review the internal records of any "political" group to which a nominee belongs or had belonged. So, if a future Ruth Bader Ginsburg were nominated, there would be a "precedent" to subpoena all records of the ACLU, including internal correspondence and financial records, subject (perhaps) only to attorney-client privilege exclusions. Am I missing something here?

David Von Drehle: I frankly couldn't understand it even in the context of his argument.

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Natchitoches, La.: What has been the main theme for both parties at the hearing in the past few days?

David Von Drehle: Sorry I overlooked this in the beginning. It would have been a good early question.

Democrats' theme: Alito may look qualified, but really he is a low-down dirty dog.

Republicans' theme: Who you calling a dog, dog?

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Salt Lake, Utah: It seems Judge Alito's confirmation is inevitable. Under what circumsatnces, if any, other then degradation of mental faculties could a Justice be removed from the bench?

David Von Drehle: If you study the late years of William O. Douglas, you'll find that even mental degradation doesn't really do the trick. It is extremely hard to get one of these folks off the Court once they're on.

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Tysons Corner, Va.: I think that one reason the Democrats appear to be losing their much ballyhooed "fight" against Alito is that they make it too easy for conservative Court nominees to derail liberal attacks. The Democrats are so obsessed about one issue--abortion rights--that all the Republican nominee has to do is throw a doggie bone in their direction by saying he will "respect precedent," and then the Democrat attack is quickly deflated, at least in the public view. By making one nebulous concession, the Republican nominee can easily ward off Democrat attacks on other issues, because these get much less publicity and are given less weight in the public mind. Also, the Bork standard helps the Republican nominee--if he doesn't look like Bork on the surface, then he must be safe for the high Court. (And these two factors are related, because Bork's presumed attack on a right to privacy is closely tied to the abortion issue.)

Do you agree with this interpretation of public and political perceptions? Thank you.

David Von Drehle: Good post, thanks.

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Fort Myers, Fla.: Please comment - in Alito's past decision requiring a husband's permission for a woman's abortion, should his concern not have been the right of the father? Is that not the crux of this whole issue? Has he ever addressed the difference?

David Von Drehle: You're a little off the road there. Alito didn't "rule" that women required their husband's "permission." Subtler than that. He said that one piece of a Pennsylvania law--which required a woman to NOTIFY her husband (not get "permission"), or seek a judge's waiver on this requirement, did not constitute an "undue burden" on her right to an abortion.

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Bridgeport, W.Va.: Hello David,

I have a question about the Fourth Amendment as it relates to the NSA issue I believe has been discussed in these hearings?

The Fourth Amendment mentions "unreasonable" searches. Doesn't that mean the Framers must have assumed there are "reasonable" searches and the wiretapping issue could be one?

Thanks

David Von Drehle: Of course the Framers envisioned "reasonable" searches. And there is a well-developed body of law for determining which searches are allowed. It involves showing probable cause, getting a warrant, etc. etc. The issue in the NSA controversy is whether and when and how the President can go around those requirements and order searches on his own steam.

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Phoenix, Ariz.: Forgetting the he said then, he believes now aspect of specific questions being asked and (kind of) answered in the confirmation hearings, what is your overall impression of Alito as a jurist? I am not at all convinced that he has the reasoned, mature mind necessary for the Supreme Court. I cannot put my finger on any one thing. But taken together -- the almost pandering nature of his application letters, his convenient lapse of memory about his CAP membership, and the fact that he says his judicial decisions are made independent of his personal/political beliefs while nothing in his judicial record indicates that he ever has made a decision independent of his beliefs -- his resume adds up to an intelligent political operative not a Supreme Court justice in my thinking. What do you think?

David Von Drehle: The experts I know think highly of Alito as a judge--thought not all of them are happy to see him move up. They know that he will be a formidable exponent for his approach to Constitutional issues.

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Costa Mesa, Calif.: It seems to me that the issue of what Alito should answer is not an unplowed field, and he should be subject to the standard set by other nominees in recent confirmation hearings. I Googled the Thomas and Ginsburg hearing transcripts and found that, on Roe, Thomas confirmed the constitution protects privacy but balked on "right to choose", while Ginsburg squarely said she believes the latter is protected. In responding to Senator Feinstein at his hearing, Roberts said Ginsburg could answer because she'd given a lecture on Roe, but he hadn't and so wouldn't commit. If previously stating his opinion on the subject is the (Roberts) standard, has Alito opened himself up to it?

I think there is a contradiction between saying "I have an open mind" and the reasonable supposition that a previous statement says the mind is already closed.

David Von Drehle: Thanks for the post.

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Centreville, Va.: Given the over-abundance of attack ads from the left over every possible item and the attack mode of most of the Senate Democrats, do you feel that the sheer volume of these attacks is causing the American public to just ignore them as they did with the Republicans' anti-Clinton attack ads and Congressional attacks in the late 1990's?

David Von Drehle: Interesting.

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David Von Drehle: Would love to stay and chat all day, but I must go. Thanks for all the questions and comments, posted and unposted.

We'll be back tomorrow at 5 -- Dan Balz, if you're lucky, or me again if you're not. Assuming they are still talkin'.

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