Alito Faces Senate Confirmation Hearings
    By Tom Brune
    Newsday

    Sunday 08 January 2006

    Washington - When Supreme Court nominee Samuel Alito faces his Senate confirmation hearings this week, he will have to turn in a performance that fits somewhere between the appearances of John Roberts Jr. and Robert Bork, several experts say.

    While Alito is not expected to match the polished and personable act of the recently confirmed Chief Justice Roberts, he also must avoid the brutally frank and politically tone-deaf answers given in 1987 by Bork, the last Supreme Court nominee rejected by the Senate.

    In the end, how Alito responds to the bright lights and prodding by the 18 Senate Judiciary Committee members could determine whether he wins his expected confirmation by the GOP majority or opens the door to delays, a filibuster or even defeat by Democrats.

    "It's probably the only thing that could prevent him from being confirmed right now, barring something coming from out of nowhere," said Carl Tobias, a law professor at the University of Richmond in Virginia who has closely followed the nomination process.

    Even so, he is widely expected to face fierce Democratic opposition and to be confirmed by between 57 and 62 votes. Roberts received 78 votes.

    Alito's confirmation hearings begin tomorrow, and will include two to three days of questioning and a day of witnesses.

    The bespectacled 55-year-old Alito, who has a reputation of being well-spoken if understated, has a tough act to follow in Roberts, with his central-casting looks and charisma.

    Roberts won the votes of half the Senate's Democrats, including liberal Sen. Patrick Leahy, of Vermont, largely because of his masterful performance at his hearings in September.

    Recently, the White House and Sen. John Cornyn (R-Texas), President George W. Bush's point man for the nomination in the Senate, have sought to lower expectations on Alito's performance.

    "It's hard to conceive of a better nominee than John Roberts, and anyone who follows is going to suffer," Cornyn said.

    Yet Alito faces some hurdles Roberts didn't, making his hearings much more difficult, Senate aides and experts say.

    Bush's nomination of the conservative Roberts to replace his similarly conservative mentor, the late Chief Justice William Rehnquist, was not perceived as shifting the court's balance.

    But Bush's selection of Alito to take the place of the court's moderate swing vote, Justice Sandra Day O'Connor, is widely seen as a shift to the right.

    That impression is reinforced by the fact that Bush chose Alito to replace White House counsel Harriet Miers, who withdrew after complaints that she lacked conservative credentials.

    Alito's 15 years on the Third Circuit Court of Appeals also creates a longer record for scrutiny than Roberts' two years on the D.C. circuit.

    And then there are the Reagan-era documents.

    The handful of papers by Alito made public from his service as a Reagan administration attorney reveal far more about him than did the 70,000 pages of materials by Roberts from his Reagan years.

    Democrats said they intend to grill Alito on those writings, in which he offered a legal strategy to overturn Roe v. Wade and advice on a case involving the attorney general's immunity in a suit over warrantless wiretaps.

    But the Democrats' launching pad will be Alito's now famous 1985 job application, in which he stated his strong belief as a conservative who proudly promoted Reagan's agenda and declared "the Constitution does not protect a right to an abortion."

    Sen. Charles Schumer (D-N.Y.), a key Democratic strategist on the nomination, warned that Alito cannot sidestep questions the way Roberts successfully did in his hearings.

    "This hearing will be extremely important for Judge Alito," Schumer said in an interview. "He's made a series of statements that are quite extreme, and how will he deal with them? Will he repeat them? Will he refute them? Or will he duck them?"

    At stake is the number of votes for or against him, and, if he appears out of the mainstream, whether Democrats will filibuster, Schumer said.

    Yet Alito's supporters are divided on what Alito should do.

    Some want him to avoid taking the defiant path Bork followed in 1987 which, combined with what they say was unfair outside opposition, ultimately led to his defeat.

    "Judge Bork is what changed everything," said Wendy Young of the conservative Judicial Confirmation Network. "Back then judges were not considered to be politicians. But now everybody expects them to be politicians." Alito, Young said, is "in the mold of Roberts" and should follow his lead.

    Bruce Fein, a Reagan administration attorney, urges Alito to stand up for his views, like Bork.

    It has been 18 years since the Bork hearings, Fein said, and the country is more conservative, Bork's views are more accepted and Republicans have 55 votes, enough to confirm Alito.

    Alito can get away with this approach in part because his personality is not "as gladiatorial as Bork's," Fein said.

    He said Alito should state: "I embrace everything I said, and I believe those decisions [like Roe v. Wade] were ill-conceived. But that doesn't mean I will overrule them."

    But if Alito accepts the White House strategy to, like Roberts, say he was just an attorney advocating Reagan administration views, "he risks alienating the entire Senate Judiciary Committee because the claim is so incredible," Fein warned.

    The "defining moment" in his hearings will come at the end of the day tomorrow, Fein said, when Alito makes his opening statement, his first chance to show how he intends to respond to the Senate.