Analysis: Balz on Alito Hearings

Fourth Day of Hearings for Supreme Court Nominee Samuel Alito

Washington Post chief political reporter Dan Balz was online Thursday, Jan. 12, at 5 p.m. ET to answer questions and provide analysis of the fourth day of hearings on Capitol Hill for Supreme Court nominee Samuel A. Alito Jr. .

The transcript follows.

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Jackson, Mich.: Thanks for taking my question.

Wow, that was quite a day yesterday. Alito basically admitted that he would not be averse to voting to overturn Roe v. Wade. That still puts the vote at 5-4, assuming the 5 remaining majority voters don't change their vote. It seems reasonable that President Bush will be able to appoint at least one more Justice which could eventually lead to Roe v. Wade being overturned. Do you think overturning Roe v Wade would wake up an apathetic electorate or just rile the pro choice camp and elate the anti-abortion supporters?

Dan Balz: Hello to everyone. As the hearings over Judge Alito's nomination head toward a conclusion, it's clear that yesterday's sessions are still reverberating with many of you out there.

I'm not sure I would totally agree with the characterization from Jackson, Mich., about what Alito said on Wednesday, but given his past writings and his conservative supporters, it's clear many on both sides believe he's open to voting that way. We'll see. But overturning Roe probably would result in a political earthquake, and some Republicans have already warned that their party could face some tough times if that happens. The best analogy is what happened after the court ruled in the Webster case in 1989, giving states the right to enact restrictions on abortion. That decision may have elected Douglas Wilder governor of Virginia and definitely stirred up voters who were otherwise apathetic about the abortion issue until that point.

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San Francisco, Calif.: Hi Dan,

Watching the hearings yesterday, I was struck by Judge Alito's response to Senator Feingold's questions regarding his Concerned Alumni of Princeton membership. After asking why he listed his membership on his job application, he said that it was because he was applying for a political position in the Reagan administration. What does that say about the Reagan administration and the conservative movement in general? He felt it was an asset to show that he was a part of a group that discriminated against women and minorities? That in itself says enough about his character and the conservative movement in general.

Dan Balz: Given what else he said about his views about some of the statements in Prospect magazine, saying they were repugnant to his own views, it doesn't seem like he was saying he was trying to associate himself with a bigoted organization to curry favor with the Reagan administration. Judging from many of the questions, there are quite a lot of people who don't believe him on that point.

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Alexandria, Va.: While nowhere near as polished as Roberts, doesn't it appear that Alito's performance was more than adequate to get him confirmed? Don't the Dems need some sort of smoking gun and/or screw-up on Alito's part, and neither seems to have occurred.

Dan Balz: Even before the hearings, it seemed doubtful that Democrats could block his nomination and it's even less likely now, given the hearings. This will be a vote very much along party lines. He probably won't get a single Democratic vote in the Judiciary Committee and won't get many on the floor, but the Republicans probably won't have more than one or two defections, so he should get through, probably with more votes than Clarence Thomas got.

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Miami, Fla.: Will the Dems filibuster Alito as a result of his testimony re Rowe v Wade?

Dan Balz: Biden said yesterday it's very unlikely.

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Falls Church, Va.: What seems to be emerging from these hearings is a rather universal dismay about the performance of the Senators on the Judiciary Committee. Elements of both the liberal and conservative press seem to agree that the senators, particularly the Democrats, were all over the place and couldn't persuasively focus on anything other than inside the beltway type of stuff. I mean, when Katie Couric of all people implies to Joe Biden that the Democrats' questioning (at least those few times when questions actually got asked) was off base and shrill, that's a bad sign for the left. The Democrats just didn't seem to bring much meat to the table, and it sure seemed to many of us that by going after Alito these last 2 days, they were simply complying with the 'requests' of their interest group financiers rather than engaging in an intellectually responsible inquiry. Thoughts?

Dan Balz: The Democrats had a bad day on Tuesday (the first day of questioning) and there was some pretty serious disgruntlement on the left about what happened that day. They came in on Wednesday determined to be more aggressive and pointed. But they had trouble deciding what their best strategy would be in trying to tarnish him. Some focused on abortion, some on executive power, some on character, some on integrity. The question is whether Democrats hurt themselves or Alito.

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Gainesville, Fla.: Do you think his statement about having an open mind meant that he is open to following precedent regarding Roe v. Wade and progeny, or that he is open to overturning Roe, despite precedent?

Dan Balz: I think that statement was designed to say as little as possible about the issue. As a lot of people have said, no one would say, "I will approach the issue with a closed mind."

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Fairfax County, Va.: I would never have predicted this a week ago, but for me the signature moment of Judge Alito's testimony was undoubtedly when Mrs. Alito, after being the stoic 'good wife' for all those hours in that hot room, burst into tears. Years from now, that is what I will remember. I also think, politically, that when she very sensibly "voted with her feet" after breaking down it took every last bit of wind out of the Democrats' sails. For those male Senators who had been there for the Clarence Thomas hearings, I'm sure there was but one thought: Oh my, we've done it again, we've just been insensitive to another woman at another Supreme Court hearing.

In principle, I don't condemn the Democrats for their relentless questioning, because the position of Supreme Court Justice is so vitally important to all of us. In fact, I wish that had been John Kerry's nominee on the stand. But that moment brought home the fact that a human being, with what everyone really knew was a fine personal reputation, was experiencing a high-tech character assassination at a time that should have been one of great pride in the honor shown to him.

Good for Mrs. Alito for providing a reality check. Do you agree that a few tears trumped four days of hot air?

Dan Balz: I'll post this for others to read it and evaluate for themselves.

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Washington, D.C.: Dan, for the life of me I don't understand why the Republicans don't go out of the way to point out that "if and when" Roe is overturned that does not mean that abortions will thereby become illegal across the nation. On the contrary, the "right to choose vs. right to life debate" will simply go back to the legislate branch to decide - where public policy ought to be debated and decided.

For the life of me I don't understand why the mainstream media overlooks this incredibly important distinction. If the polling is correct then the right to choose will (w/some restrictions) will remain the law of the land.

Why the silence by the Republicans? Why is the media ignorant and conspiring to leave America ignorant?? If your not conspiring, then why don't you challenge Schumer, Kennedy et al. on this topic?

Dan Balz: Republicans and conservatives are very skittish about abortion in these hearings. You're right that if Roe is overturned, the debate will return to state legislatures, and it's also true that reversing Roe is a long-sought goal of many conservatives. You'll recall that when Alito's 1985 memo was first disclosed, few if any conservatives said "hooray for Alito." Instead they distanced themselves from it.

The press hasn't avoided the question of what happens if Roe is overturned. You're right that most want it upheld and support abortion rights, with some restrictions. But the politics differ from state to state and there are clearly a number of states that would ban the practice if given the opportunity.

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Redondo Beach, Calif.: The Senate hearings seem to be more about grandstanding and publicity for the Senators themselves than learning about the candidates.

Given the nature of the hearings, why are they given so much coverage in the press?

Dan Balz: Anything with this many cameras will result in some grandstanding. The press covers these hearings because (a) there aren't all that many Supreme Court vacancies, (b) the court has great power to effect change in the country, and (c) the court may be in transition right now and each change could be significant in rebalancing the institution.

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Vienna, Va.: Mr. Balz:

Thanks for your participation. It seems to me that the Democrats are being asked by outsiders to achieve an unachievable goal--stop a conservative nominee from being approved. While there are some Democrats in the Senate who oppose Alito simply because he is Bush's nominee, many others are being prodded to do so by liberal (I would say leftist) issue advocacy groups. These groups now control a large part of the machinery of the Democratic Party, and are calling in their chits. The problem is, their expectations are totally unrealistic. The Dems are unlikely to filibuster anyone except the most flaming of conservatives, because that would trigger the "nuclear option." Even if Alito could be stopped (seems unlikely), Bush would simply go to the bullpen for the next name. He has three years left in his term. In reality, all the liberals can do is hope that Bush doesn't get another slot to fill.

Dan Balz: It is difficult to stop a Supreme Court nominee from being confirmed, but the hearings provide a forum for a debate not only about the qualifications of the nominee but over the competing political philosophies of the two parties. Many senators believe a president should have considerable latitude in naming new justices, but increasingly, in the polarized environment of today's politics, that view is often trumped by voting in concert with your party's base. In the past, a John Roberts would have won more than 90 votes; in today's environment he got 78. Alito's total will be even smaller.

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Davis, Calif.: Is it me, or is the notion by Supreme Court appointees and their supporters that they can not comment on their views of cases "in play" just a bit overblown? What is wrong with commenting on cases based on evidence available? Since there is such a desire to have justices who will rule on the original intent of the constitution, has anyone considered whether it was intended to have a confirmation process, where appointees are allowed to pass on topics on which they are likely to rule?

Dan Balz: Today's debates and hearings are more extensive than in the past. Some justices have been confirmed by voice vote on the Senate floor. I believe that public hearings for Supreme Court nominees weren't even conducted until the 20th century.

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Washington, D.C.: Did you think the testimony of the judges was effective and swayed any undecided Senators (if such creatures exist)? While perhaps other judges have testified before, certainly not like this and it seemed to speak very well for his nomination. Thoughts?

Dan Balz: The testimony of the judges was interesting but probably won't have much impact, if any, on the outcome. Perhaps a few Red State Democrats will take notice.

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An earlier question today to John F. Harris...: What are your thoughts on this... Conway, Ark.: So let me get this straight--of course the warrantless snooping is legal, says the Bush administration, because the program was vetted by executive branch lawyers, who exercised legal judgment independent of their client, we're supposed to believe. Meanwhile, down the street, we shouldn't put too much stock in things Sam Alito wrote in the 80s when he was a government lawyer in the Reagan administration, because he was just doing his client's bidding.

Which is it?

Dan Balz: I'll defer to Harris's earlier chat on this.

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washingtonpost.com: Discussion Transcript: Post Politics Hour with John F. Harris (Jan. 12)

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Gainesville, Fla.: The Democratic Senators' questions, as well as most media coverage of them, seem to presume that Judge Alito's response to the questions on Roe v. Wade and the status of precedent (or stare decisis), namely that he will keep an open mind, means that in spite of his prior opinion that there is no constitutional right to abortion, he will be open to finding that there is such a right, since it has substantial precedential support.

It seems at least as likely that his answer about keeping an open mind means that in spite of the presumptive deference to precedent establishing the right to abortion, he will keep an open mind to legal arguments that would overturn Roe and progeny. Might that be why he refused to accede to Justice Roberts' acknowledgement that Roe v. Wade is "settled law?"

Dan Balz: There seems to be a dispute over exactly how Roberts and Alito differed in answering the question about whether Roe is settled law and I haven't had a chance to review the transcripts of their hearings, and of Roberts's appellate court hearings, to sort it out. My own sense was that Alito was more cautious than Roberts on the question of precedence and stare decisis, but hardly definitive in tipping his hand.

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Washington, D.C.: Are the Democrats on the Committee at all concerned that, by their statements and questions at both the Roberts and Alito hearings, they are confirming the depiction of liberals as being only interested in result-oriented judges? Also do they really think the "unitary theory of government" is a winning argument, when all it stands for is that disputes within the Executive are to be resolved internally by the Justice Dept. or, if necessary, the President, so that Dept. X and Dept. Y. don't end up litigating their differences in the federal courts?

Dan Balz: I suspect some Democrats are concerned about that, while others believe the senators weren't crisp or focused enough with tough questions.

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New York, N.Y.: I think Judge Alito is a big fat liar regarding his CAP membership. I mean, it's not like we're talking about 1955, it's 1985. Do we want a justice to serve on the bench with such a faulty memory? It's also so lovely that the Republican senators were able to prep and practice with Judge Alito before the hearings began. Give me a break.

Dan Balz: As noted earlier, there are many who don't believe Alito on the Princeton alumni group and here is one view on that.

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Shawnee Mission, Kan.: After the review of the Princeton CAP documents and finding no mention of Judge Alito, do not Democrats like Senator Kennedy if they were any kind of gentlemen owe a formal public apology to him?

And if not, why does the Press give him a free pass for people who act in an uncivil manner before the TV cameras generates the regrettable tit for tat name calling that American Politics has become?

Finally, is it not because of the extreme partisan like Senator Kennedy or Representative DeLay that good intelligent people no longer involve themselves in the political process?

Dan Balz: You could call Kennedy's office and ask about that. Based on what the New York Times had already reported about the William Rusher documents, it seemed unlikely there would be anything terribly relevant in the boxes.

I'd take issue with some of your other points. I don't think the press gave Kennedy a free pass. What he did was available on live television, written about in newspapers and discussed openly. Nor do I agree that good people have been driven out of the process. Perhaps some people are reluctant to get involved, but there's lot of evidence that intelligent people on both sides are active in the process.

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Washington, D.C.: If you were a betting man, would you put a dollar down that Bush will get another nomination opportunity in his remaining three years?

Dan Balz: If I were a betting man, yes.

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Washington, D.C.: To the other DC chatter who thinks the media should focus more on the the states having the ability to decide abortion, I take issue with that. If it's my constitutional right to have an abortion as a woman, then it shouldn't matter what state (or non-state) I live in.

Dan Balz: The other DC chatter was saying that if the court decides there is no constitutional right . . . .

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Washington, D.C.: There are some of who claim any conservative is a racist, bigot, etc. However, I don't see why the post should automatically assume those claims are legitimate. Look at William Branigan's article

"Democrats...cited statements in its magazine that expressed racist, sexist and homophobic views."

One can agree or disagree with an individual member's statements. However CAP was originally formed, it seems, to express a preference for single-sex education. That isn't that remarkable since we still have single-sex education schools in this country.

If a future female nominee went to all female school and was a member of an organization that opposed the enrollment of men in her school, would they be calling her a bigot?

Dan Balz: Alito himself called the remarks in the magazine repugnant. This isn't a question of why the group was formed but some of what was put in its magazine. What was read at the hearings sounded indefensible.

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Chicago, Ill.: Mr. Balz, as always, thank you for your time. I'm wondering that, should the heavens fall and Roe were to be overturned, might that not serve the function of deradicalizing politics on the national level, as it would return the issue to the states? In turn, might that not allow both of the major parties to adopt less hardline views on the issue, seeing the variance of views on abortion break down more along state lines party lines?

Dan Balz: Adding to what I said a little earlier, I think that, at least for a time, it would mean even more political warfare. While action would be in the states, the implications for reshaping national politics are pretty significant.

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Kingstowne, Va.: To me, the single most objectionable argument I've heard from the Democrats during the process of filling the two vacancies on the Court in the past year has been the argument that since O'Connor was generally moderate, Bush was somehow obligated to replace her with a moderate. Funny how you never heard the same theory when a Democrat was filling a vacancy (e.g., Ginsburg replacing White).

Dan Balz: Certainly there's nothing that says a president must replace a conservative with a conservative, a liberal with a liberal and a swing vote with a swing vote, but when the key swing vote on the court retires, the stakes are heightened, which means there is going to be greater scrutiny on her replacement.

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Wausau, Wis.: I don't seen any real issue with the accusations revolving around Vangard, and it seems the ABA was comfortable with Alito's explanation. Am I missing anything, and is there any reason to be concerned about that situation?

Dan Balz: The issue reallly has come down to the pledge Alito made to the committee to recuse himself from Vanguard cases. He did not have a financial interest in the outcome, based on everything we know, and he clearly passed muster with the ABA on that front.

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Plano, Tex.: Given this guy's record (Alito) does the media feel no responsibility at reporting what is at stake here. This guy agenda will likely halt or undo the efforts by the liberals and court liberal to expand rights and liberties and freedoms. for the last 50 years. We will likely see an agenda that seeks to curtail those freedoms in a "strictly constructionist court". Yet the media primary focus seems to be about the personalities and tactics. What about the repercusions, damage? Don't you guys feel you owe the public a little more?

Dan Balz: I'm not sure the media has hidden or ignored anything here. The press has written quite a lot about what he's done, what he's written, where he fits on the spectrum of judges, etc., etc. The press has hardly focused, as you suggest, on personalities and tactics. This battle is another reminder that elections matter. No question that John Kerry would have nominated a different judge.

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Washington, D.C.: I would love to know why the Democratic Senators dance around every question they asked Alito? Are you not allowed to ask "Judge Alito, if nominated to the Supreme Ct. would you vote to overturn Roe vs. Wade?" I think its a pretty simple, straight forward question, don't you?

Dan Balz: Yes, it's a simple, straightforward question that no nominee would answer, so they have to find other ways. Many of the questions that Schumer and Durbin asked on Roe were pretty well formulated.

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RE: Fairfax, Va.: Actually, wasn't it Republican Lindsey Graham that prompted Mrs. Alito to cry?

Dan Balz: It was during his questioning that she started to cry, but we don't know that it was him or what he was saying about the Democrats' questions that prompted the tears.

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Los Angeles, Calif.: While I don't agree completely with Joe Biden's assertion that the hearings are worthless and might as well not be held, it does seem like they are moving in that direction. The Democrats attacked, knowing how he stood and knowing they had almost no chance at preventing his confirmation and the Republicans defended his positions as though they were talking to their constituents rather than each other--or to Alito. Judge Alito, with his unresponsiveness made himself almost irrelevant to the proceedings. Your thoughts.

Dan Balz: We'll end on this question. Thanks to everyone. If these hearings are just seen in the context of "can the Democrats stop Alito," then there probably is no good reason to hold them, but you could argue that when someone is going to get a lifetime appointment to the Supreme Court, the more that can be learned about him or her, the better. For all the bad moments in the hearings, there was quite a lot of interesting discussion between Judge Alito and the senators. There also is probably some value, as Senator Specter pointed out, if having a nominee go through all this to make him or her more sensitive to the views and concerns of the legislative branch on a variety of issues likely to come before the court. It's hard to believe a justice isn't affected in some way by all of that.

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