Senate Panel Set to Vote on Alito

Sen. Arlen Specter and Sen. Patrick Leahy at committee hearing.

Sen. Arlen Specter (R-PA) gavels four days of Alito hearings to a close on Jan. 12. Sen. Patrick Leahy (D-VT) is at Specter's left. Tim Sloane/Getty Images hide caption

itoggle caption Tim Sloane/Getty Images

The Senate Judiciary Committee votes Tuesday on the nomination of Judge Samuel Alito to the U.S. Supreme Court. Alito's confirmation is anticipated despite objections from some Democrats.

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STEVE INSKEEP, host:

This is MORNING EDITION from NPR News, I'm Steve Inskeep. Here in Washington today the Senate Judiciary Committee votes on the nomination of Judge Samuel Alito to the U.S. Supreme Court.

We're going to talk more about this with NPR Legal Affairs correspondent Nina Totenberg who has been covering the hearings over Alito. Nina, good morning.

NINA TOTENBERG, reporting:

Good morning, Steve.

INSKEEP: We're expecting a party line vote today in the Judiciary Committee which would mean that Alito moves on to the full Senate but not with unanimous approval. What's that mean?

TOTENBERG: Well, this is very rare. Chief Justice Roberts as a nominee got three Democrats on the Judiciary Committee. Justices Ginsburg and Brier, when they were nominated, were overwhelmingly approved, both in committee and on the floor. When Robert Bork was defeated in committee one Republican, Arlen Specter joined the Democrats in voting against him and then six Republicans voted against him on the floor. And when Clarence Thomas was before the committee, one Democrat, Dennis DeConcini defected.

INSKEEP: So what's the difference between Alito and these other nominees who got some support from the other party?

TOTENBERG: Well, if you compare him to Ginsburg and Brier, the answer is that President Clinton really didn't want to spend a lot of political capital on these nominations. He had other more liberal nominees he was considering and he went to Orrin Hatch, who was the ranking Republican, and Hatch said, I'm going to have trouble getting those through. And Clinton said, well, who can I get through? And Hatch said, two pretty moderate liberals, Ginsburg and Brier. And so, Clinton picked them and they went through like a proverbial knife through butter.

But, you know, Steve, I want to say that there's a bigger answer here too. These nominations have gotten more contentious in a partisan way as the parties have gotten more homogenous. President Johnson's nomination of Abe Fortas was successfully filibustered in 1968 because there were a substantial number of Democrats who were concerned about the nomination.

And President Nixon's nomination of Clement Haynsworth in 1969 was defeated with the help of 19 Republican votes, G. Harold Carswell, 13 Republican votes. Clarence Thomas in '91 got through with the help of 11 Democrats. Today though, the Republican Party is a lot more uniform, the conservative and the Democrats are a lot more uniformly liberal.

INSKEEP: So, it appears that Democrats are nearly all, maybe not all, but nearly all against Alito, which means the Democrats could probably muster 40 votes in the Senate which, in theory, would be enough to hold a filibuster and block the nomination entirely. Is that likely to happen?

TOTENBERG: It's not likely to happen. There may be as many as 40 or a couple more votes against Alito. It's unclear yet what the vote's going to be, but it's one thing to vote against a nominee on the floor. It's another thing to hold up a Supreme Court nomination with a filibuster and with the Republicans threatening to pull the trigger on the nuclear option, so called nuclear option, in order to prevail there, they need to keep all the Democrats and get six Republican votes. So it's just not going to happen.

INSKEEP: President Bush has said he wants an up or down vote. It sounds like you're saying that's what he is going to get.

TOTENBERG: That's what he is going to get.

INSKEEP: Now, John Roberts, the President's last nominee to get to a full Senate vote, got quite a few Democrats to vote for him, 22 Democrats.

TOTENBERG: Right.

INSKEEP: It sounds like you're saying that Alito is not going to get anywhere near that number.

TOTENBERG: He's not, and part of the reason is he's replacing Justice Sandra Day O'Connor, who is a swing vote, and this will really determine the future of the court in many ways. For whatever reason the Democrats thought they got stiffed by Alito. They just didn't think they got real answers. They're more concerned about his record. He has a very lengthy judicial record, Roberts didn't.

Some of them voted their hopes not their fears. That was a little easier to do with Roberts and, you know, there are political considerations here. If you're a Democrat in a red state, yes you're worried about independents considering you too liberal but you're also worried about your own constituency.

And in the Thomas nomination, for example, there were a couple of Democrats who voted for Thomas and who were promptly defeated in primary or general election.

INSKEEP: You said the Democrats feel that they got stiffed by Alito. There's that old saying that Supreme Court nominees say the absolute minimum that they have to in hearings in order to get confirmed. It sounds like you're saying Alito said just enough and not a bit more.

TOTENBERG: That's about right. And please remember, the Republicans have 55 votes in the Senate. If it were reversed and the Democrats controlled the Senate, the story might be very different.

INSKEEP: NPR Legal Affairs correspondent Nina Totenberg. Thanks.

TOTENBERG: Thank you, Steve.

INSKEEP: And you can read more analysis of the Alito confirmation battle by going to our Web site, NPR.org.

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