ROBERT SIEGEL, host:
This is ALL THINGS CONSIDERED from NPR News. I'm Robert Siegel.
The confirmation hearings of Judge Samuel Alito for a seat on the Supreme Court are over. In today's final session, friends and critics of the nominee offered their judgments to the Senate Judiciary Committee. Among the friends was Judge Alito's onetime boss, former Solicitor General Charles Fried.
Professor CHARLES FRIED (Former US Solicitor General): I believe that it's perfectly appropriate for this panel, for this committee to have probed Judge Alito's disposition. Everybody has a disposition. He is in the mainstream. He tends towards the right bank of the mainstream, I agree. When this Senate approved two wonderful judges to be justices--Justice Breyer and Justice Ginsburg--it was perfectly plain that they tended towards the left bank.
SIEGEL: That's Harvard law Professor Charles Fried.
Joining me now is NPR legal affairs correspondent Nina Totenberg.
And, Nina, Charles Fried said it was appropriate for the committee to probe. Did they probe all that much, and did they turn up much?
NINA TOTENBERG reporting:
Well, they tried to probe and they didn't get much for their trouble. They asked as many, as best as you can expect senators to ask, a lot of questions; some of them better than others. And what they got is that the nominee repeated that the Supreme Court's landmark abortion decision, Roe vs. Wade, is an important precedent, but he left the door open to reversing it. He said that having racially and ethnically diverse student bodies is important, but he refused to say if it's important enough to justify affirmative action policies. Answering questions about presidential power, he said that the president is not above the law. But when senators asked whether the president has the power under the Constitution to violate laws that he believes interfere with his war-making duties, well, Alito refused to say. And when asked whether Congress has the power to strip the courts of jurisdiction to rule on constitutional issues, he likewise refused to answer. And I could go on, but you get the drift.
SIEGEL: Hmm. Well, what do you think of what Charles Fried said, he tends--he's in the mainstream, but tends toward the right? Is that how you think Judge Alito emerged, or is he really going to tend toward the right and be a kindred spirit to Justice Clarence Thomas, say, or Justice Scalia on the court?
TOTENBERG: I don't think he'll be like Justice Thomas, who doesn't believe in precedent at all. I mean, he...
SIEGEL: Although I think he said he did at his confirmation hearings.
TOTENBERG: That's something else. But this guy, I take at his word that he really does believe in precedent, and so I think he will be somewhere between Justice Scalia and maybe the late Justice Harlan. I think he's going to be a pretty conservative judge.
SIEGEL: We've had two Supreme Court confirmation hearings in the past few months. How did the Alito hearings compare to the confirmation hearings for Chief Justice Roberts?
TOTENBERG: Well, Chief Justice Roberts was, you know, sort of like the leading man, and Sam Alito is sort of the leading character actor playing the role of a nerd.
(Soundbite of laughter)
SIEGEL: Not quite the star power that we had...
TOTENBERG: No, but it worked.
TOTENBERG: I mean, you know, that this is a--it was a strategy to say nothing and to be completely inoffensive. And, you know, Charles Krauthammer, my conservative colleague, wrote a column, a hilarious column, in which he described how Sam Alito sat there without moving for the first eight hours listening to the opening statements from the senators.
SIEGEL: Now the backdrop to these Supreme Court nominations and other circuit court nominations has been all the talk about a possible Democratic filibuster in the Senate, of possibly extremely contentious cloture debate or the exercise of what they call `the nuclear option.' Do you think it's likely that we'll see anything that contentious as the nomination of Judge Alito goes forward?
TOTENBERG: I think there'll be a fairly contentious debate on the floor of the Senate, but I'd be very surprised if there's a filibuster. I just don't think the Democrats have the stomach for it because they haven't got themselves an issue that they really can go to the country with. I don't think they'll lose ground over having a long debate and making the points that they want to make. And after all, they have to worry about their constituency, their base--labor, civil rights groups, women's groups and--those are the folks who turn out their vote. They have to worry about their voters, too. But I would be very surprised if there's a filibuster. I think there'll be a substantial number of votes, maybe more than 40, against Judge Alito.
SIEGEL: And what's the timetable for all this? A committee vote next week?
TOTENBERG: Or probably--either the end of next week or the week after. You know, I think we'll have a newly confirmed justice probably some time within the next three weeks.