Sen. Kennedy
appeared to have lost his fastball in the 19 years since he eviscerated
nominee Robert Bork. But Alito is a deceptively more difficult
target. While Bork appeared a flamboyant scholar eager to expound
his worldview, Alito came over as a cautious lawyer dealing in
fine print and footnotes. Republican senators had feared the nominee's
uninspiring style would undo him, but they now feel it actually
carried the day.
Failure
to make a direct hit on Alito suggests a transcendent defeat for
the Democratic judicial confirmation strategy crafted by Kennedy.
It did not block all conservatives for appellate courts and failed
to dissuade Bush from naming conservatives to the Supreme Court.
To stop Alito required an auto wreck at this week's hearings,
which always was unlikely considering his style.
It was not
that Teddy Kennedy did not try his best on Tuesday. His legal
aide, James Flug (an expert on judicial assassination), had stocked
the senator with multiple scripts. But Kennedy seemed bogged down
with his material, flitting from one subject to another, without
focus. That seemed a generic problem for most Democratic senators.
Sen. Joseph Biden spent 11 minutes in the preamble before he got
around to his opening question.
Republicans
were amused at Democrats stressing Alito's membership in the Concerned
Alumni of Princeton (CAP) because of the organization's alleged
fight against admission to the university of women and African-Americans.
Alito testified he could barely remember his connection with CAP,
but said he joined to protest Princeton's expulsion of the ROTC
from campus.
What had
worried Alito's strategists in advance was a concerted attack
on his civil rights decisions that might erode support among moderate
Republicans. But Alito's bland, lawyerly style prevailed when
Biden raised the 1995 decision on a lawsuit by Barbara Sheridan
against the DuPont Co. charging sex discrimination. Alito was
outvoted 11 to one when the court ruled in Sheridan's favor. "After
listening to Alito," said Republican Sen. Lindsey Graham,
"you think the other 11 judges missed the boat."
Alito's
dry style encouraged the pretense that the Judiciary Committee
Democrats were engaged in a serious inquiry into the nominee's
judicial philosophy. Actually, liberal special interest groups
demanded a response to this nominee that was more vigorous than
the passive opposition to John Roberts as chief justice. As a
result, the only Democratic senator who now can be counted on
to vote for Alito is Sen. Ben Nelson, running for re-election
this year in the very red state of Nebraska.
In this
week's hearing, Biden typically did not disguise the political
stakes involved in this confirmation process: the conservative
Alito replacing Justice Sandra Day O'Connor, a swing voter who
usually has swung left. Biden asserted that O'Connor was "the
fulcrum on an evenly divided court," so that filling this
seat is more important than Roberts replacing Chief Justice William
Rehnquist.
Sens. Charles
Schumer and Richard Durbin, two of the Senate's most partisan
Democrats, have tried this week to escalate the intensity level
of the hearings by asserting that the burden of proof was on Alito
to show that he deserves to be on the Supreme Court. Just how
he was supposed to do that was not spelled out. But that extraordinary
heightening of the standards of confirmation would relieve the
senatorial inquisitors from responsibility for measuring a nominee's
fitness.
Schumer,
at the end of the committee table in seniority, had to spend the
entire day Tuesday watching his colleagues shooting blanks before
he got his chance to fire the real thing. Schumer was well prepared,
with a senatorial third degree of Alito demanding repeatedly to
know whether he believed in a constitutional protection of abortion.
That question led off a harsh, carefully scripted interrogation
of the nominee. It made Chuck Schumer look mean and nasty, but
that hardly derailed Sam Alito.
