MICHELE NORRIS, host:

Joining me now to examine the more than three hours of opening testimony today is Jeffrey Rosen. He's a professor at George Washington University Law School. He's also a legal affairs editor at The New Republic. And he's here in our DC studio.

So glad you're with us.

Professor JEFFREY ROSEN (George Washington University Law School; Legal Affairs Editor, The New Republic): Nice to be here.

NORRIS: Now one thing we know for certain: This is going to be an interesting week. We knew abortion would be a key topic, and we'll have more on that in just a bit. But there was a lot of talk today about executive power. Several Democratic senators and Republican Lindsey Graham noted that the justice he's replacing, Sandra Day O'Connor, has a skeptical view of executive branch powers. How contentious do you suspect this line of questioning might be?

Prof. ROSEN: It was awfully interesting, wasn't it, that Senator Specter, the Republican chairman, began his statement by saying, `This hearing comes at a time of great national concern about the balance between civil rights and the president's national security authority'? So it's clearly not just Democrats who'll be pressing Judge Alito on this subject. And Senator Specter was even more direct about this. He said, `You have endorsed a controversial theory of the unitary executive, which could be used even to ignore the recently passed resolution banning torture. And I'm going to ask you hard questions about that.'

NORRIS: Well, as they ask those hard questions, Jeffrey, walk us through the track record that they'll be looking at.

Prof. ROSEN: Well, Judge Alito, as a Reagan administration official, seemed to endorse broad wiretapping authority. He said that the attorney general should be immune from suits about wiretapping. And his critics fear that he actually would buy into this unitary executive theory. His defenders say that, in fact, he was relatively cautious in adopting moderate strategic positions that were ultimately embraced by the Supreme Court, and they think there's plenty of room for him to repudiate some of the broader claims of the current Bush administration.

NORRIS: Now those on both sides of this issue--those who support Samuel Alito, those who oppose him--have had months to sort of work out their arguments. This is something that sort of came on the horizon fairly late in the game. From the Republicans' perspective, how do you imagine they'll gear up for this?

Prof. ROSEN: Well, the Republican pro-life supporters were quite fierce in their opposition to Roe vs. Wade. Lindsey Graham said that this is responsible for killing millions of unborn persons. Senator Brownback talked about babies with Down syndrome being aborted before they were being born. So clearly they were not intending to hold back at all in their desire that Judge Alito not only be neutral on but affirmatively endorse Roe vs. Wade.

NORRIS: I'd like to bring Douglas Kmiec into our conversation. He's a chair and professor of constitutional law at Pepperdine University in Malibu, California. He joins us on the line now from his office there in Malibu.

Doug, glad you were able to join us.

Professor DOUGLAS KMIEC (Pepperdine University): Glad to do it.

NORRIS: I wanted to follow up on this question of abortion. How contentious do you think that line of questioning's likely to be, given what we heard today?

Prof. KMIEC: Well, I think we heard an outline of a number of contentious subjects; I think abortion was the lead-off subject. I think it's going to be difficult to make that particularly contentious for Sam Alito since he's been so faithful to the observance of precedent as an appellate judge. And now we all know the difference between an appeals judge and a Supreme Court justice. But we also have an impression from Judge Alito that he's not someone who moves radically. In his internal memorandums in the Justice Department, when his colleagues were being urged to make a frontal assault on Roe, Sam Alito was counseling, `No, let's incrementally adjust the balance to give some breathing space for the states to regulate this subject.'

So I think the fact that Judge Alito has ruled a number of times respectful of the precedent in this area, along with his general disposition of being a very careful lawyer who moves in incremental rather than in revolutionary steps, is largely going to diffuse that issue. And, in many ways, the Democratic opposition is going to have to look to other topics, some of which they outlined this morning.

NORRIS: But the Democratic opposition did promise a very tough line of questioning. And they tried to paint him--particularly Senator Charles Schumer of New York tried to paint Samuel Alito as someone who was from the extreme right wing. When we actually heard from Judge Alito, he suggested that he changed somewhat when he joined the bench. What do you think he meant by that, and who do you think he was speaking to specifically with that statement?

Prof. KMIEC: Well, I think he was speaking to the issue of his job application and the comparison of that application which, of course, stated positions that were comfortable to the Reagan administration, to his role as a judge where he said in a quite humorous and witty way that he's participated in thousands of cases, written hundreds of opinions which might constitute cruel and unusual punishment to read them all, but that if you examine these opinions, you see he has no agenda, no preferred outcome, no particular client other than the law as it is given by the state legislatures or the Congress. I think he was outlining in a very affirmative, very positive way what his conception of the judicial role is. And in many ways, while, you know, we heard over and over again during the course of these questions how taken the members were with John Roberts, how wonderful they thought he had answered this question or that question. When Sam Alito did his summary in his statement, I think he ultimately, through sincerity and commitment to this idea of a limited restrained judge, really exceeded even the expectations of the committee and maybe even exceeded the performance of John Roberts.

NORRIS: Well, you noted that this follows on the heels of the John Roberts confirmation hearings. For most of the public, this is the first glimpse they've really got of Samuel Alito. They've heard about the debate over his writings and his views, but they saw him surrounded by his family. Jeffrey, what do you think they saw today and heard?

Prof. ROSEN: Well, he tried to humanize himself, and, of course, this has been a convention of Supreme Court hearings ever since Clarence Thomas talked about growing up in Pinpoint, Georgia. We knew that he was going to tell his story and he did. He started off with an old joke. It wasn't a great one. He said the story of the lawyer who argued before the Supreme Court and was asked, `How did you get here?' and he said, `The Baltimore and Ohio Railroad.' It's like, `How do you get to Carnegie Hall?' `Practice, practice.' This counts as humor in Supreme Court hearings. But he talked about, `I am who I am because of my father. My father received an unexpected $50 scholarship that made the difference between his working in a factory and going to college. My mother also worked which was rare for her generation.' He showed his children. He made jokes about his children, calling to mind John Roberts' brandishing of his own children.

NORRIS: And in that sense, do you think he was speaking past the members of the Senate straight to the American public there?

Prof. ROSEN: Of course he was. As you said, this was the first glimpse of the public of this man and they saw his family and they saw a family that, as we were discussing earlier, was a little bit less polished, perhaps a little bit more rumpled, maybe easier to identify with than the extremely well quaffed Roberts family. And if Alito seemed a little bit halting and he had a New Jersey accent and he looked a little bit nervous in answering some of the questions, at least this was someone who seemed authentic.

NORRIS: That was Jeffrey Rosen, professor at George Washington University Law School and legal affairs editor at The New Republic, and Douglas Kmiec, chair and professor of constitutional law at Pepperdine University in Malibu, California. He joined us from his office in Malibu.

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