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U.S. Supreme Court

Analysis: Alito's hearings: not much flash, but no missteps

The high court nominee appears on his way to confirmation.

By TOM RAUM
Published January 11, 2006

WASHINGTON - Samuel Alito is no John Roberts. Roberts wooed senators of both parties with a dazzling command of legal precedent and social ease to win confirmation as chief justice of the United States.

And, as Democrats on the Senate Judiciary Committee kept reminding Alito on Tuesday, neither is he another Sandra Day O'Connor, the retiring justice Alito would succeed.

O'Connor's moderate views on abortion and other social issues often made her the swing vote on a host of 5-4 rulings.

"You are replacing someone who has been the fulcrum on an otherwise evenly divided court," Sen. Joseph Biden, D-Del., told Alito.

Besieged with such comparisons, Alito navigated his way through day two of his confirmation hearings with mild manners and a course that seemed charted to not upset his chances of Senate confirmation, which now seems likely.

His day's mission - hour after hour - seemed to be to say nothing particularly attention-grabbing, out of character, or reflecting anger or lack of preparation.

When he defended his writings and opinions of the past, including those involving abortion, presidential powers and strip searches, he sought to provide context and signal flexibility.

He calmly recited case law and details.

"He was quite confident," said James Thurber, a political scientist at American University. "He's smart, articulate and polite."

"And unless there is a major stumbling or bombshell, I think he will be confirmed," Thurber said.

Democrats appeared to lack the muscle to stop the nomination, and seemed increasingly unlikely to mount a filibuster to delay the vote, which could give Alito opponents more time to try to rouse the public, and senators, to block the nomination.

Alito defended past opinions in his 15 years as a judge on the 3rd U.S. Circuit Court of Appeals, and his writings as a Reagan administration lawyer before that. But in some instances, Alito seemed to be hedging on them.

He opposed abortion as a Reagan administration official in the 1980s. Yet he testified that the Constitution protects the right to privacy, a basis for the 1973 Roe vs. Wade decision that legalized abortion. If confirmed, he would approach the issue of a woman's right to abortion with an open mind, he said.

But he also defended his 1991 dissent in a Pennsylvania case in which he supported a requirement that women seeking abortions must notify their husbands.

Alito said he agrees with retiring O'Connor's assertion in 2004 that President Bush does not have a blank check to wage war. But Alito stopped short of commenting on the legality of the president's warrantless domestic eavesdropping program or treatment of terror-war detainees.

Fred McClure, a Republican lawyer who worked in the Reagan and first Bush administrations, said Alito exhibited "a calmness that is holding him in good stead."

Alito sidestepped repeated questions on the court decision that settled the 2000 election in favor of Bush. He disputed Democratic charges of a bias toward favoring broad executive-branch authority.

And he sought to distance himself from his membership in a Princeton alumni group known for its opposition to opening the school to women and minorities - even though he cited that membership in a 1985 application for a Justice Department job.

Although not as smooth as Roberts, Alito did show "a mixture of being totally nonconfrontational while also standing up for his position and being able to summon up a lot of detail," said Fred Greenstein, a Princeton political science professor.

Alito couldn't do much about senators singing the praises of Roberts and O'Connor. But there was one former Supreme Court nominee he clearly didn't want to be linked to: Robert Bork.

He told senators he disagreed with some of Bork's writings, even though he once praised him.

And he managed to avoid the kind of answer that helped sink the Bork's nomination 1987. Asked why he wanted to serve on the nation's highest court, Bork startled even some supporters when he said because it would be an "intellectual feast."

Asked the identical question by supportive Sen. John Kyl, R-Ariz, Alito was ready.

"This is a way for me to make a contribution to the country and society," Alito said.

While the courts have an important role to play, he said, it is a limited one. "So it's important for them to do a good job of doing what they're supposed to do, but also not to try to do somebody else's job."

Something there for everyone.

[Last modified January 11, 2006, 01:04:03]