Opening Statements Awaited at Alito Hearings
RENEE MONTAGNE, host:
This is MORNING EDITION from NPR News. I'm Renee Montagne.
STEVE INSKEEP, host:
And I'm Steve Inskeep.
President Bush's latest choice for the Supreme Court is expected to face sharp questions in hearings that start today. It's the president's third choice to fill the seat of Sandra Day O'Connor.
MONTAGNE: The first choice was John Roberts. He ended up being nominated for chief justice instead. The second choice was Harriet Miers, who was forced to step aside.
INSKEEP: The third choice is Judge Samuel Alito. His long experience explains Alito's passionate support among conservatives and passionate opposition from liberals. Here's NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG reporting:
Unlike John Roberts, who had less than a two-year record as a federal judge, Samuel Alito has a 15-year record. So Judiciary chairman Arlen Specter is already planning for hearings that could extend late into the evening.
Senator ARLEN SPECTER (Judiciary Committee Chairman; Republican, Pennsylvania): These hearings will be different because Judge Alito has a much longer paper trail. He's been involved in almost 4,800 cases. He has a great many opinions, more than 300. And there's more to ask him about.
TOTENBERG: For the past two months, Alito's been prepping in moot court sessions with administration lawyers. Former Senator Dan Coats, recruited as the administration's point man for the nomination, observes that Alito is quite different from Roberts.
Former Senator DAN COATS (Bush Administration's Point Man on Samuel Alito's Supreme Court Nomination): In temperament, in personality, in style, they're very, very different.
TOTENBERG: As Coats puts it, Alito is more of an everyman.
Former Sen. COATS: I think what America is see in the hearings is a somewhat laid-back, very even-tempered, but yet very incisive thinker in Sam Alito. Just a normal guy but with an extraordinarily impressive background.
TOTENBERG: Others put it differently. They say Sam Alito is more of a--well, more of a nerd. Not all of his meetings with senators have gone smoothly. While John Roberts is an experienced Washington hand, a person of great personal charm, Alito is more reticent. And some, like the Judiciary Committee's ranking Democrat Patrick Leahy, say Alito was much less forthcoming than Roberts. Whereas Leahy met with Roberts three times totalling three hours and ended up voting for him, he's met with Alito for just 20 minutes.
Senator PATRICK LEAHY (Judiciary Committee; Democrat, Vermont): I sent Judge Alito a number of questions basically on the issue of separations of power. I haven't received any response. I didn't even receive an acknowledgment that he got the letter. But apparently neither he nor the White House really cares to answer the questions.
TOTENBERG: Leahy has not demanded not more time with Alito, but he says the atmospherics for this nomination are entirely different.
Sen. LEAHY: The fact that they've not allowed--and they really are pulling the strings on Judge Alito--they're not allowing him to be independent now, which makes you wonder if he would be if he was on the court.
TOTENBERG: Democrats also have their hackles up because of the, quote, "lack of information" produced by the administration. The White House has refused this time, as it did in the Roberts nomination, to produce memoranda written by the nominee when he served in the Office of the Solicitor General during the Reagan administration. In Alito's case, the White House has also refused to produce memos Alito wrote when he served as a deputy assistant attorney general in the mid-1980s. The administration has even refused to produce a list of the subjects covered in those memos. The memos that have been produced were, for the most part, released under the Freedom of Information Act by the National Archives. And some of those will be fodder for much of the questioning this week.
Another big difference is that Alito's been nominated not as a conservative filling a Supreme Court seat previously held by a conservative. He's been nominated to fill the seat of the retiring Justice O'Connor, the swing justice who often cast the deciding vote on questions ranging from abortion and affirmative action to separation of church and state and executive power. Indeed, if Alito is as conservative as many of his supporters believe, his nomination could quite dramatically alter the ideological makeup of the court. Democrat Patrick Leahy notes that when Alito served in the Reagan administration, he was a forceful advocate for a more muscular and powerful presidency.
Sen. LEAHY: He spoke of an expansion of executive power and basically that the power of the president trumps the rights of individual Americans.
TOTENBERG: Indeed, in one memorandum, Alito opined that in his view the attorney general should be completely immune from lawsuits brought by American citizens who were illegally wiretapped. Democrats and Republicans on the Judiciary Committee say they intend to query the nominee about those views, particularly in the context of the recent disclosure that President Bush has authorized warrantless electronic surveillance on American citizens.
Former Senator Coats, the administration's point man on the nomination, perhaps previewing Alito's answer, says that the Senate should not make too much out of that memo from two decades past.
Former Sen. COATS: A lot of water under the bridge since that particular point in time, and he will be looking at this from a completely different perspective, the perspective of a justice as opposes the perspective as of someone working for the administration 20 years ago.
TOTENBERG: Expect a similar answer when Alito is pressed on his views about Roe vs. Wade, the Supreme Court's landmark abortion decision. Applying for a top Justice Department job in 1985, Alito said he was, quote, "particularly proud of his role in the Reagan administration in trying to get that decision reversed. The Constitution," he wrote, "does not protect a right to an abortion." Alito has told senators in private meetings that those are his personal views and that a judge may not consider his personal views. But Senator Specter has conceded that Alito's job application expresses a legal opinion, not merely a personal opinion about abortion. If Alito wants to appease Democratic critics on this subject, though, he risks alienating strong abortion opponents.
Democrats, too, are expected to press the nominee on what they call `credibility issues.' In his 1985 job application, Alito cited his membership in a Princeton alumni organization that opposed women's admission to the college and accused the school of lowering standards to admit more minorities at the expense of slots given to the children of alumni. But while he cited his membership in the group in 1985 when seeking a job in the Reagan administration, Alito this year said he did not recall being a member of the group.
Democrats will also spend some time on the promise Alito made in 1990 when he was nominated to the appeals court, a promise to recuse himself from cases involving Vanguard mutual fund companies, in which he held stock. Two years ago, however, he did participate in a Vanguard case, eventually recusing himself when the plaintiff filed an ethics complaint. Though Alito defenders see the Vanguard matter as making a mountain out of a molehill, Senator Edward Kennedy does not.
Senator EDWARD KENNEDY (Democrat, Massachusetts): That was a pledge and that's a promise. There is a ring to the questions of credibility.
TOTENBERG: Senator Specter says it's a fair subject for the hearings.
Sen. SPECTER: But if that's the most that people have to talk about, they don't have very much to talk about.
TOTENBERG: Outside the hearing room, interest groups on the right and left are mobilizing their troops and spending hundreds of thousands of dollars on TV and radio ads. The liberal MoveOn.org is fielding this ad featuring a fake Alito with his back to the camera being made up for a TV appearance.
(Soundbite of MoveOn.org advertisement)
Unidentified Woman: Looking good. Now let's tackle a few problem areas. Yes, you wrote on a job application that a woman has no constitutional right to an abortion, but your excuse is brilliant. You only did it to get the job. You broke your promise not to rule on cases involving that company you invested with. Stick to your answer: `Computer glitch.' Oh, the group you belong to that wanted to restrict African-American admissions to your college? You've...
TOTENBERG: And the conservative Progress for America has this ad.
(Soundbite of Progress for America advertisement)
Unidentified Man: Every day, desperate liberals make up a steady drip of attacks against Judge Samuel Alito. Want the truth? Respected Supreme Court analyst Stuart Taylor of the nonpartisan National Journal: Alito, quote, "is widely admired by liberals, moderates and conservatives who know him well as fair-minded, committed..."
TOTENBERG: Inside the hearing room, Alito will field a tool never used before by a Supreme Court nominee. A panel of five sitting federal appeals court judges, colleagues, will testify for him. It's a move that's raising eyebrows among some legal ethicists, but in the end, as Senator Specter observes, Alito will make or break his own case.
Sen. SPECTER: His answers will determine what happens to him. It's up to him.
TOTENBERG: Nina Totenberg, NPR News, Washington.
INSKEEP: Our coverage of the Alito nomination continues at npr.org, where you can read about his rulings on abortion and other key issues.
This is MORNING EDITION from NPR News.
NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.