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Supreme Court nominee Samuel Alito delivers his opening statement to the Senate Judiciary Committee during the first day of his confirmation hearings.
Kenneth Jost, Supreme Court editor for CQ Press and contributing editor of CQ Weekly, has covered legal affairs as a reporter, editor and columnist since 1970.
Facing skepticism from Democrats, Supreme Court nominee Samuel A. Alito Jr. presented himself to the Senate Judiciary Committee on Monday as an open-minded judge with no "agenda" other than "the rule of law."
"A judge can't have any agenda, a judge can't have a preferred outcome in any particular case, and a judge certainly can't have a client," Alito said after listening silently to opening statements from the committee's 18 members. "A judge's only obligation — and it is a solemn obligation — is to the rule of law. And what that means is that in every single case, the judge has to do what the law requires."
Alito's pledge echoed the promise that Chief Justice John G. Roberts Jr. made to the same committee in September in a successful effort to allay concerns that he would bring a conservative agenda to the high court. Roberts won confirmation by a 78-22 vote, with all Republicans and half of the Senate's 44 Democrats voting to approve him. This nomination promises to be more contentious.
Laying the Groundwork
All eight Democrats on the Judiciary Committee laid the groundwork on Monday for possible opposition to Alito if he holds to conservative positions that he has taken on a range of issues, including abortion, executive power, civil rights and congressional authority.
"The challenge for Judge Alito in the course of these hearings is to demonstrate that he will protect the rights and liberties of all Americans and serve as an effective check on government overreaching," said Sen. Patrick J. Leahy of Vermont, the panel's ranking Democrat. He was one of three committee Democrats — along with Wisconsin's Herb Kohl and Russ Feingold — who voted for Roberts.
The Republicans on the committee sounded just as unified. They countered by stressing Alito's academic and professional credentials, including his 15 years as a judge on the federal appeals court for his home state of New Jersey.
"You easily fit into the mold of what this nation has come to expect from Supreme Court justices," Sen. Jon Kyl (R-AZ) told Alito. "A first-rate intellect, demonstrated academic excellence, a life of engagement with serious constitutional issues, and a reputation for fair-mindedness and modesty."
The Groups at Work
Alito's nomination has been the focus of a pitched battle since President Bush selected him on Oct. 31 to succeed retiring Justice Sandra Day O'Connor, a conservative centrist. Stressing O'Connor's role as a swing vote on such issues as abortion and affirmative action, a long list of liberal groups are opposing Alito's confirmation on grounds he would shift the court's balance of power too far to the right.
Alito's opponents were out in force on Monday. The abortion rights group Pro-Choice America organized an anti-Alito demonstration outside one of the Senate office buildings as the hearings were about to begin.
Meanwhile, the American Civil Liberties Union (ACLU) announced late Monday that it is opposing Alito's confirmation because of what it called his "troubling record on civil rights and civil liberties." The last time the ACLU opposed a Supreme Court nominee was in 1987 when the Senate rejected President Ronald Reagan's nomination of Robert Bork.
Social conservatives had staged a pro-Alito rally on Sunday with a program in a predominantly African-American church in Philadelphia that was televised on several Christian networks and directly into churches around the country. Various speakers, including Sen. Rick Santorum (R-PA) endorsed Alito's nomination as a way to oppose "liberal judicial activism" on such issues as gay marriage, abortion and church-state separation.
A Humble Beginning
The nominee steered clear of any of those issues in his 10-minute opening statement on Monday. Instead, Alito stressed his personal background as the son of an Italian immigrant father and first-generation American mother who both had successful careers and instilled in him and his sister "a deep love of learning."
Alito went on to hint at the source of his conservative views by noting that he attended Princeton University and Yale Law School during the turmoil of the late 1960s and early 1970s.
"I saw some very smart people and very privileged people behaving irresponsibly," Alito said. "And I couldn't help making a contrast between some of the worst of what I saw on the campus and the good sense and the decency of the people back in my own community."
Alito mentioned only briefly his decade of service in the Justice Department — as an assistant solicitor general, deputy assistant attorney general in the Office of Legal Counsel, and finally U.S. attorney for New Jersey. Several Democratic senators said they will question Alito about his statements in the 1985 letter applying for the Office of Legal Counsel job opposing Supreme Court decisions on abortion, affirmative action, criminal law, religious freedom and reapportionment.
O'Connor's Long Shadow
Committee Chairman Arlen Specter (R-PA) opened the confirmation hearing by challenging the conventional wisdom that Alito would have a pivotal vote on the high court. Specter said that if Roberts sticks to his promise of "modesty" and "stability" on the court, Alito "may not be the swing vote regardless of what position he takes on the judicial spectrum."
Democrats, however, uniformly pictured the nomination as critical to the court's future direction. "The process of filling this vacancy on the Supreme Court is going to tip the scales one way or another," said Sen. Richard J. Durbin (D-IL). Sen. Joseph R. Biden Jr. (D-DE) noted that O'Connor had cast the decisive vote in 77 percent of 191 5-4 decisions during her tenure.
None of the Republican senators directly endorsed Alito's confirmation, but several left no doubt that they would vote to approve him. And several challenged the Democrats' suggestion that Bush should have nominated a centrist conservative like O'Connor to maintain the court's current balance of power.
"That's not the way we've operated in the past," said Sen. Sam Brownback (R-KS), "and it's not the way we should operate today."
Specter, who said he has not decided how he will vote, will begin the questioning of Alito when the hearing resumes at 9:30 a.m. on Tuesday. In addition to abortion, Specter said he will question Alito about executive power in light of President Bush's approval of warrantless domestic electronic surveillance following the Sept. 11 attacks. He said he also will ask Alito about recent Supreme Court decisions narrowly construing congressional power.
Senators will continue questioning, in order of seniority, for at least three rounds. Specter said he plans to finish the hearing this week and to have the committee vote on the nomination on Tuesday, Jan. 17. But Democrats could delay the vote by exercising their right to hold the nomination over for a week after the end of the hearing.