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Alito set to step into the spotlight
The New York Times
WASHINGTON — The showdown begins Monday at high noon.
Even before Judge Samuel Alito arrives on Capitol Hill for his Supreme Court confirmation hearings, Democrats on the Senate Judiciary Committee appear lined up solidly against him.
The big question is whether they will try to block the nomination by filibuster, and if so, which side will be left standing when the political dust settles.
For Alito, the son of an Italian immigrant who grew up in New Jersey with a dream of being a major-league baseball pitcher, the hearings are a hurdle between him and an even bigger dream.
After months of meeting senators privately and staying mum before the news media, they will provide him with a forum to emerge from the shadow of the previous nominee, Chief Justice John Roberts.
The hearings, expected to last four days or more, will also give Alito his first opportunity to confront Democratic critics, who plan to spotlight domestic spying as much as abortion. How he answers their questions, on topics such as his 1985 statement that the Constitution does not protect a right to abortion, will determine whether Democrats try to keep him from the job.
The Democrats, hoping to pick up seats in this year's midterm elections, have almost as much at stake as Alito. They are under intense pressure from liberal advocacy groups to oppose Alito, and they are aware that if he is confirmed to replace Justice Sandra Day O'Connor, a critical swing vote, he could tilt U.S. jurisprudence in a more conservative direction for decades.
Yet a filibuster would be risky, and Democrats know it.
Sen. Charles Schumer, D-N.Y., a member of the Judiciary Committee, said there is a consensus among Democrats that although "it's hard to block a nominee, blocking this nominee is a possibility." But Schumer said no decision would be made until the hearings are over.
"Because he has had some very strong statements, he is under an obligation to accept or refute those, and if he just tries to avoid them, the assumption will be made that he still believes them. That puts him in a difficult position," Schumer said. "On the other hand, blocking a nominee is a big deal. So who knows? Everyone's waiting."
The hearings before the 18-member Judiciary Committee — 10 Republicans and eight Democrats — will unfold against a political landscape vastly changed since the fall, when Roberts was confirmed by a Senate vote of 78-22.
Washington today is consumed with the revelation that President Bush authorized the National Security Agency to eavesdrop on Americans, and domestic spying will be a prominent feature of the Alito hearings, perhaps as much as abortion.
For Bush, the hearings may offer a welcome distraction from the troubles of the Republican Party, which has been ravaged by criticism over the economy, the war in Iraq, the domestic-spying program and, most recently, the scandal involving Republican lobbyist Jack Abramoff, whose plea bargain with federal prosecutors last week set off a shake-up of the Republican leadership in the House and, on Saturday, the decision by U.S. Rep. Tom DeLay to step down permanently as majority leader.
Norman Ornstein, a resident scholar at the American Enterprise Institute who studies Congress, said Bush would benefit from a "sharp-edged ideological battle" over Alito. "He wants something that rallies his base with more enthusiasm," Ornstein said.
Nothing rallies the bases of both parties like judges. For conservatives, who have fought for decades to curb what they regard as the liberal activism of the judiciary, the Alito nomination is a sweet reward. For liberals, it is terrifying.
Republicans, outside observers and even some Democrats say the odds are in favor of Alito, unless he performs poorly or a bombshell is dropped. Yet there are no guarantees.
"It's amazing how often the conventional wisdom in this town is wrong," said Ralph Neas, president of People for the American Way, a liberal advocacy group that led the opposition to the 1987 nomination of Robert Bork and is leading the opposition to Alito. "Going into the Bork hearings, Bork was favored to win confirmation. He was decisively rejected, 58 to 42."
Less support predicted
Though no Democrats have said how they will vote, it is clear Alito will attract less support from them than did Roberts. On the Judiciary Committee, three Democrats — Sens. Russell Feingold and Herb Kohl of Wisconsin and Patrick Leahy of Vermont, the panel's senior Democrat — voted to confirm Roberts as chief justice.
In a recent interview, Leahy made clear he is far less comfortable with Alito.
"Judge Alito, who are you?" Leahy said in mock conversation with the nominee, after explaining he spent nearly three hours with Roberts before his hearings but has had only one brief meeting with Alito. "You're going to be on there, taking the seat of the one person [O'Connor] who has demonstrated that she's willing to be a swing vote. To what extent are you willing to show the same kind of independence?"
But the polls work in Alito's favor; they have found that a majority of Americans support his confirmation. The midterm elections could also help his chances, because Democrats facing re-election in Republican-leaning states will be disinclined to oppose the nomination or join a filibuster. With 44 Democrats and one independent in the Senate, and 41 votes required to sustain a filibuster, the margins are slim.
At the same time, the Senate has already fought a filibuster battle. Last year, when Democrats were blocking some of Bush's judicial nominees, the Republican leadership threatened to change Senate rules to bar filibusters of judges. Democrats, in turn, threatened to bring business to a halt. A meltdown was averted when a group of seven Democrats and seven Republicans signed a pact saying they would filibuster judicial nominees only under "extraordinary circumstances."
Republicans say they expect that pact to hold.
"I really have some doubts, now that everyone has backed away from the table and taken their guns away, whether there is sufficient support of a filibuster, particularly in light of this nominee and his qualifications," said Sen. John Cornyn, R-Texas.
Raising the issues
Some Democrats contend privately that a filibuster fight would not be worth it. They say the party should focus on issues that resonate more strongly with voters. To that end, Democrats intend to use the Alito hearings to put a spotlight on domestic spying.
Some Democratic senators, including Schumer, Leahy, Feingold and Edward Kennedy of Massachusetts, have signaled their intention to question Alito on the spying.
They will try to draw a link between the program and a 1984 memo in which Alito, then a lawyer for the Reagan administration, argued that the attorney general should be immune from lawsuits for ordering wiretaps without a court order.
"There is no question that the question of executive powers in time of war, in the context of the terrorist threat, will be central to the Alito hearings," Feingold said.
On that score, Democrats will get a boost from the Republican chairman of the Judiciary Committee, Sen. Arlen Specter of Pennsylvania, who intends to conduct hearings on the domestic-spying program and who intends to question Alito about whether Congress should have been informed.
But Specter, an ardent supporter of abortion rights, said spying will be second on his agenda; as was the case with the Roberts hearings, the chairman will raise his first questions about abortion.
"I intend to begin the hearing with the question of his 1985 statement that the Constitution does not protect the right to abortion," Specter said. "I think in the popular mind, the woman's right to choose is still the dominant issue."
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