Alito Winning Early Rounds

Judging from press reaction, Samuel Alito is more than holding his own after two days of Senate grilling.

Adam Liptak and Adam Nagourney have an Analysis piece in the NYT entitled, “Judge Alito Proves a Powerful Match for Senate Questioners.”

If Senate Democrats had set out to portray Judge Samuel A. Alito Jr. as extreme on issues ranging from abortion to government surveillance of citizens, they ran up against an elusive target on Tuesday: Samuel A. Alito Jr. For nearly eight hours, Judge Alito was placid, monochromatic and, it seemed, mostly untouchable.

Unlike the testimony of John G. Roberts Jr., who had often declined to answer questions on various grounds, among them that certain issues might come before him as chief justice or that his older writings did not necessarily reflect his current views, Judge Alito’s default impulse frequently seemed to be to try to give a direct response to the senators’ often rambling questions. Failing that, he offered what he presented as clarifications of earlier statements or writing, sanded of any rough edges, or said he simply could not recall details about some past chapter of his life that had raised concern among senators. Only in one exchange did he appear rattled, refusing to give a direct answer when Senator Charles E. Schumer of New York asked him if he still held a view, expressed in 1985, that there was no constitutional right to abortion.

For the most part, his handling of questions from Democrats had the effect of leaving his questioner shuffling through papers in search of the next question. Judge Alito was not Judge Roberts, to be sure – far less personable, rarely smiling and struggling to draw even the occasional burst of laughter. But he came across as far less ideological than Democrats have suggested, undercutting their efforts to stir public opposition by portraying his writing as outside the American mainstream.

WaPo’s Charles Lane more-or-less agrees in “Alito Replies Don’t Rock Status Quo.”

On his first day of questioning from senators, Supreme Court nominee Samuel A. Alito Jr. tried to send a reassuring message: The country may be at war, but Americans’ personal privacy and civil liberties will be safe with me. Under sharp questioning from Democrats and gentle prodding from Republicans on the Senate Judiciary Committee, the federal appeals judge portrayed himself as a cautious, independent thinker who understands the judiciary’s role as a check on presidents who overstep their constitutional authority. “The Bill of Rights applies at all times,” he told the committee. “And it’s particularly important that we adhere to the Bill of Rights in times of national crisis because that’s when there’s the greatest temptation to depart from them.”

In an otherwise low-key performance, Alito seemed to bristle only once, when Sen. Russell Feingold (D-Wis.) asked if Bush administration officials had helped sculpt his answers about the White House’s use of the National Security Agency to eavesdrop on some communications inside the United States. “Nobody has told me what to say,” Alito snapped.

But, like nominees before him, Alito was short on specifics, refusing to explain how he would rule on issues that might come before the court. The nominee had to walk a fine line: He could not renounce his past opinions; he could not openly agree with Democratic critics of the president who appointed him; and yet he had to show that, on the court, he would not merely act as a rubber stamp for the president.

On the other coast, LAT’s Ronald Brownstein concedes that, “Dems Can’t Crack Alito’s Armor.”

Democrats resembled a guerrilla army searching for a weak point in a heavily guarded fortress Tuesday as they challenged Supreme Court nominee Samuel A. Alito Jr. at his Senate Judiciary Committee confirmation hearing. The array of issues Democrats raised reflected the breadth of their concerns about the record of Alito, President Bush’s choice to succeed retiring Justice Sandra Day O’Connor. But the broad nature of their critique also underscored the party’s difficulty at coalescing around a single, clear argument against Alito’s nomination.

The long day of testimony did not produce a dramatic or emotional confrontation that flustered Alito, a judge on the U.S. 3rd Circuit Court of Appeals. But the persistent and sometimes relentless questioning from Democrats signaled that the party might mount a more forceful resistance to his nomination than it did to Bush’s choice last year of John G. Roberts Jr. as chief justice.

With Republicans holding 55 Senate seats, Alito remains a strong favorite to succeed O’Connor. But based on the sometimes contentious back-and-forth between Alito and Democrats on Tuesday, the process may not be as smooth or predictable as it was for Roberts, who won confirmation from the full Senate with a commanding 78-22 vote. “With Roberts, there was an air of inevitability from the very beginning,” said Nan Aron, president of the Alliance for Justice, a liberal coalition opposing Alito. “This situation is completely different.”


Alito was contained and controlled through the long hearing Tuesday, never seeming to anger and only rarely displaying flashes of humor. He demonstrated an encyclopedic knowledge of the cases he had decided on the 3rd Circuit, fielding detailed questions on dozens of them without referring to notes.


Operatives on both sides generally agree that, absent some significant revelation or development at the confirmation hearings, three of the 55 Senate Republicans might consider voting against Alito: Lincoln Chafee of Rhode Island, and Olympia J. Snowe and Susan Collins of Maine. With Alito virtually assured of winning a Senate majority, stopping the nomination would probably require a Democratic filibuster. In turn, that maneuver would probably revive an effort by Senate Republicans to ban use of the filibuster for judicial nominations. At this point, the odds are against the Democrats attempting a filibuster, partly because too many of their senators from “red” states where Bush is strongest would likely resist such an effort. Sustaining a filibuster would require 41 Senate votes; Democrats hold 44 Senate seats and usually receive support from independent Sen. James M. Jeffords of Vermont.

One sign of difficulty for Democrats hoping to block Alito came late Tuesday when David DiMartino, the spokesman for Sen. Ben Nelson (D-Neb.), said the lawmaker had heard nothing that “seems to be near a disqualifying issue” for the nominee through the first day of hearings. Yet prominent Democrats, such as Sen. Charles E. Schumer (D-N.Y.), haven’t foreclosed a filibuster attempt. Although the Democratic enthusiasm for resisting Roberts palpably waned after the first day of questioning, Alito’s long record seemed to provide plenty of fuel for a sustained argument through the rest of the Judiciary Committee’s hearings — and into the full Senate’s debate on him.

Kevin Drum suspects that Alito is “fudging furiously” in his answers to questions on controversial issues but thinks he will get away with it, noting, “Subtle arguments about the nature of stare decisis and the precise extent of the president’s Article II powers just aren’t going to get very many people ready to take to the streets with pitchforks. ”

Agreed. While Alito is somewhat more conservative than John Roberts, and is replacing a more centrist Justice as well, the fact of the matter is that he is superbly well qualified for the Court and within the mainstream of judicial conservatives.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. Herb says:

    As I watched the hearings yesterday, I observed Kennedy, with his sharp, biting tongue, do his best to shake Alito with no success. Alito was just to smart for him. Kennedy did not disappoint me in his star studded TV performance. He make a complete ass of himself.

    Schumer, Feingold, and Fienstein did not fare so well either. About the only thing they accomplished was they proove “beyond a reasonable doubt” that the democrats have an obstructionist agends and did not have a smidgen of the intelligence that Alito posesses.

    If there is any doubt that the democrats are a “bunch of has-beens” just watch them today and remove any skepticism

  2. Alnog says:

    ALito is doing OK. But the thing to keep in mind is that this guy is not the most qualified person to sit on the court. That person was Harriet Miers. The fact that we may have to accept a second fiddle is extremely disturbing.

  3. James Joyner says:

    Alnog: It’s hard to see any way in which Miers was more “qualified” than Alito, who is head and shoulders above her in terms of professional achievement and judicial experience.

  4. Alnog says:

    It’s hard to see any way in which Miers was more “qualified” than Alito, who is head and shoulders above her in terms of professional achievement and judicial experience.

    I am not a lawyer, but I am a supporter of President Bush.

    After he nominated her, he indicated that Miers was the most qualified person he had to choose from. Given the alacrity with which Alito jumped at the chance to be Number 2, it is safe to say that he was also considered when the President decided that Miers was the most qualified.

    Unless you are suggesting that Bush has poor judgment or was lying when he affirmed Miers as the most qualified person for the court, I see no reason to question Bush’s decision.

    The “poor judgment” line is being used by Democrats on a whole host of other issues that are couched as criticisms of Bush: his embrace of Ken Lay, his analysis of pre-War intelligence, his planning for post-occupation Iraq, his support of Brownie, etc… I’d rather not give Democrats any more fodder for Bush bashing by questioning the Miers appointment.

  5. Burky says:

    Harriet Miers was a strong nominee for entirely different reasons. Her selection by the President was not poor judgement or disingenuious but rather an arbitrary and idiosyncratic preference from among many superbly qualified prospects Bush had to choose from. Her unsuccessful bid was due to political and media pressures.

    Judge Alito is also among the most qualified jurists in America, but he is a much different nominee with strong but different qualifications. There isn’t any ONE “most qualified” prospective nominee. Under different circumstances, Alito or another prospective nominee may have been the President’s “first choice”. The fact of the matter is, he is the President’s choice now, and he deserves to be confirmed.

    The guy’s resume is indisputable. He’s Ivy league, has federal experience including Supreme Court experience and has the top rating from the American Bar Association. Sit and think to yourself for a moment: what more could one accomplish in a legal career besides a Supreme Court seat?

    The shameless abuse of the “advise and consent” role by certain Senators is disgraceful and does not play well in most of the country. Folks in my home state of Ohio know Judge Alito deserves to be confirmed and this grandstanding makes Dems look bad.

  6. NJ voter says:

    Does anybody else think that Alito sounds a little bit fruity? Not pressing the alarm button, but it is not soothing to hear him speak sometimes.

  7. Steve in NY says:

    RE: Alnog’s comments

    Sheesh, stop feeding the trolls and maybe they’ll go away.

  8. Herb says:

    As I watched the hearings today (Wednesday), I am furious at the way the democrats conduct themselves. It is beyond me why anyone would want to be associated with the,

    Senator Kennedy, the democrats pride and joy was a complete ass. He humiliated and harrassed Judge Alito and his family, who sat with him, to the point that Mrs Alito was in tears and had to leave the room. Senator Kennedy has no class and is no doubt the absoloute scum of our entire country.

    It surely a double standard when kennedy used the same methods he accused our troops and other government officials doing to the captive terrorists that we have in Gitmo and Abu Grude.

    I can only conclude that Kennedy loves the terrorists more that he does his fellow Americans.

    No doubt about that because kennedy used terrorists tactics in the hearings today.

  9. floyd says:

    if there could ever be a proof that representative democracy can not work, it’s name would be ted kennedy. shame on you massachusetts.

  10. Alnog says:

    Her selection by the President was not poor judgement or disingenuious but rather an arbitrary and idiosyncratic preference from among many superbly qualified prospects Bush had to choose from.

    Cut the Bush-bashing. This is not what the President said. He plainly said that Miers was the most qualified person he could find. You sound like some namby pamby liberal with all of your equivocation.

  11. Ozzie says:

    A general comment. There are two seperate debates happening at these hearings. The first is between the Senators themselves. Consistently, they retort and refute each others claims and “misleading” facts. So much so that it leads to two fairly easy conclusions. A: Most have their minds all set. B: The “hearing” is a bit of a sham.

    The second debate is actually about Judge Alito’s jurisprudence. Now I’m no legal magnate, and I have not watched all of the hearings, but from what I have watched I’ve seen a far more expansive set of questioning from the Republicans. Democrats just seem bent on CAP, abortion, and character assasination.

    It’s just appalling that these hearings are just for attacks on a noble person and questions to placate special interest groups. Sad. Even more so because Senator Graham’s comments were exactly right; good people are turned off to politics by these attacks. I’m 25 and recently got into politics. It intrigues me. However, were I any younger I would just flip the channel or type a different URL because all the attention goes on histrionics and grandstanding and substance is hardly discussed.