JURIST Special Guest Columnist Richard Davis of Brigham Young University says that at the end of four days of Senate confirmation hearings, Judge Samuel Alito appears to have succeeded in his political task of securing enough swing votes to avoid a filibuster and assure his appointment to the US Supreme Court ...
The Specter-Kennedy battle that occurred Wednesday faded away Thursday when Senator Specter announced that an examination of CAP (Concerned Alumni of Princeton) leader William Rusher's personal papers concluded that there was no mention of Alito. This finding suggests that Alito may have overstated his involvement in CAP in 1985 when it was potentially beneficial to him, but, similarly, is understating it today (not even remembering when he joined).
Judge Alito testified for four hours. During that time, Alito did give some mildly interesting answers. One, for example, came during questioning by Senator Kohl about whether judges should be term limited. Alito favored looking at how other nations have treated tenure on their courts and made reference to the fact that most state courts apply term limits. He even suggested that had he been a Framer he would not have opposed a long term for judges rather than life tenure. In an answer to Senator Schumer, Alito said he had no quarrel with post-New Deal interpretation of the commerce clause and acknowledged that interpretation of the clause had evolved over the nation's history. He also admitted he felt that acts of Congress had a strong presumption of constitutionality and that information obtained through torture would be impermissible.
But Alito refused to comment on a number of other issues. Once again, he demurred on the Kelo case. He did use the opportunity to state that the precedent set by the case would be important to him. (In doing so, he was indirectly addressing the accusation that he is unwilling to follow precedent.) He also would not speculate on whether Congress had the power to deny citizenship to someone born in the United States.
Alito was not the only witness of the day. Three panels followed him. They included representatives from the ABA, colleagues who had worked with him on the Third Circuit, and colleagues from the executive branch and academics.
But the main witness of any Senate confirmation hearing is the nominee. According to Senator Specter, Judge Alito had fielded 700 questions over 18 hours of testimony. What do those 18 hours tell us about Samuel Alito's chances to win confirmation?
In short, Samuel Alito didn't hurt himself. He made no gaffes that provided ammunition to his opponents. He avoided statements that would suggest he carried an ideological agenda or would willy-nilly attack precedents he disagreed with. That isn't to say these things aren't true about him. But he did not give that impression over 18 hours sitting at the witness table.
Some Democrats may have been sorely disappointed, and at least frustrated. Their frustration speaks to the fiction that the purpose of the hearings is to understand the nominee's views so senators can make a judgment about whether to vote for confirmation. That may be how the public views it. It may be how current textbooks describe it. Yet, when nearly all senators enter the hearings knowing how they will vote on a nominee, and when questions are predictably softball on one side of the horseshoe-shaped bench and aggressive on the other, it is easy to conclude, to paraphrase Mae West, that truth has nothing to do with it.
The real objective is political. Judge Alito's job was to maintain enough votes of swing senators like Lindsey Graham and Arlen Specter to secure a majority both on the committee and in the full Senate, as well as to make a filibuster seem nakedly political and therefore not a viable option for Democrats. He did that. In fact, unless some bombshell drops between now and the floor vote, Alito will probably get the support of at least two or three Democrats, maybe more.
What Alito didn't do was turn this confirmation from a partisan conflict into a consensus vote. Perhaps he could not have done so or, in line with the intense partisanship with which George W. Bush has governed since 2001, had no intention of doing so. Nevertheless, the change is significant and suggests that, even absent a smoking gun, the minority party in the Senate will oppose a nominee who fits the president's intended judicial mold merely on the grounds that the nominee fits the president's intended judicial mold.
With that goal, it is understandable why Alito performed the way he did. He answered questions; in fact, nearly all of them. But that doesn't mean his words necessarily were answers. Sometimes he chose to say that he needed more specifics to answer a question. And then, when more specifics were provided, he said he could not comment because it might be a pending case. At other times, he would answer that he had not thought about an issue, as he did with the Bush v. Gore case or whether he would recuse himself in cases arising from the judges who testified on his behalf.
Admittedly, Alito, like other nominees, faced quandaries. One involves ethics. As Justice Ginsburg testified, a nominee shouldn't give hints or previews.
But the other is political: What to say that will help maintain, or perhaps win, support without simultaneously losing it. Not only was the nominee facing a nearly divided Senate Judiciary Committee, but also a nearly divided nation. Once on the Court, he will have more freedom to take sides. But at this juncture, he is still dependent not only on the individuals sitting in front of them (as well as their Senate colleagues), but also on public opinion that could shift away from him and unleash a wave of nervousness on the part of swing senators.
With that pressure, one might think it would be best for a nominee to avoid saying anything at all. Yet, Alito did take positions on issues. He said he supported a right of privacy. He said he had no quarrel with post New Deal commerce clause interpretation and a right of privacy, and the principle of one man-one vote. These have become valence issues where a nominee is expected to mirror public thinking on the issue. On other issues that don't fall in that category such as abortion or the denial of citizenship rights to immigrant children Alito ducked. As Senator Biden noted, the freedom with which a nominee takes issue positions is related to the popularity of the statement.
Biden also suggested Thursday that the Senate scrap the hearings and just move the nomination directly to the Senate floor. If hearings really are all about courting public opinion with popular statements and ducking unpopular ones, he may have a point.
Richard Davis is a professor of political science at Brigham Young University and the author of Electing Justice: Fixing the Supreme Court Nomination Process (Oxford, 2005)