Alito: Another Reality Show Winner

Supreme Court nominee Judge Samuel Alito

Supreme Court nominee Judge Samuel Alito leaves the hearing room after concluding his participation in confirmation hearings on Capitol Hill in Washington, D.C., Jan. 12. Brendan Smialowski/Getty Images hide caption

toggle caption Brendan Smialowski/Getty Images

Once again, the power of television to create reality has overwhelmed a historical event. The ascent of Samuel Alito to the U.S. Supreme Court became inevitable this week because his performance before the Senate Judiciary Committee on live TV sold the nation on his judicial image. Not coincidentally, the same hearings left his opponents looking disorganized and peevish.

Alito's confirmation was probably guaranteed the moment his wife, Martha, left the hearing room sobbing. Late on the third day of the hearings, Mrs. Alito was apparently worn down and distressed by the harsh, contentious tone of the cross-examination. All media duly noted her tearful exit, and its power as an emotional cue was irresistible.

Even before the weeping that sealed the deal, Judge Alito's own lawyerly sangfroid had largely put an end to the suspense. The committee will vote 10-8 along party lines to recommend Alito's confirmation, just as it likely would have if the vote had been taken before the hearings began.

The full Senate will then follow suit, with no filibuster, although Alito will not get close to the 78 votes Chief Justice John Roberts' got in winning confirmation last year. Something around 60 seems more likely.

Will Alito feel constrained by his relatively narrow victory and therefore bring a sense of caution to his new job? There's no reason to think so. When William Rehnquist joined the court in 1972, he showed no sign of embarrassment from receiving just 68 votes in the Senate.

Will Alito fulfill the wish of those who want a second Sandra Day O'Connor, a swing justice who balances and moderates the court? Probably not. Given a chance to compare himself to O'Connor by a question from Sen. Herb Kohl (D-WI), Alito promptly declared himself his own man.

Alito was careful to offer obeisance to O'Connor's legacy, of course, whenever appropriate. In fact, throughout his hearings, the nominee gave wide berth to the political forces and volatile passions that swirl around the Supreme Court — particularly with regard to abortion.

But let's remember that President Bush chose him for this job to please conservatives, especially those who long for a second Antonin Scalia on the high court. Those conservatives were ecstatic when Alito was nominated, and he said nothing in his confirmation hearings to suggest their faith was misplaced.

So if most people tell pollsters they want another O'Connor, why are they getting someone closer to Scalia? And why do observers agree that the battle over this nomination is done?

The answer is that the low-key Alito aced his audition this past week by creating just the persona he wanted in his TV trial. Through three grueling days of televised questioning, he displayed exactly the kind of serious and focused demeanor the average American wants in a judge.

Those who tuned in also witnessed the workings of a first-rate legal mind: analytical, cautious and attentive to detail. If it seemed also wonkish, humorless and literal to a fault, well, these are flaws one expects to forgive in a jurist.

As Alito carefully parsed each question before dispensing his answers, he resembled a well-prepared graduate student acing the oral exams for his doctorate.

Many of us expected him to suffer by comparison to Roberts, who dominated his own confirmation hearings last year with a mixture of intellect, eloquence and humor. Alito was not nearly so charming, but it turns out that dry and controlled works too — so long as you commit to nothing and frighten nobody.

Alito also clearly benefited from the behavior of his inquisitors. The Democrats were too often preening and predictable. Worse yet, they were too obviously relaying the questions and concerns of constituencies committed to blocking Alito. One after another launched into the same list of questions and talking points, as though the hearings had only begun when the cameras turned his way.

The Republicans were not much better. They seemed an overeager entourage, lunging to defend Alito and to mock his detractors and denounce the Democrats. And if several Democrats spent more of their time talking than listening to Alito answer them, several Republicans did the same.

There will be much more of this from both sides before the committee and floor votes. But the issue has been decided. The new associate justice has passed the Three Tests: He has received the president's nomination, survived the post-nomination-pre-hearings scrutiny and won the battle of the small screen that determines the public attitude.

This may not be the best way to vet the members of our Supreme Court, but in this televised age, it has become institutional.



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