Confirmation Hearing Will Be No Walk in the Park for Alito

Jan. 9, 2006 — -- The Senate confirmation hearing for Samuel Alito will be far more contentious than that of now-Chief Justice John Roberts (who had a skimpier paper trail to attack); Alito is poised to replace the retiring Justice Sandra Day O'Connor, who was a critical swing vote on abortion, civil rights, affirmative action, First Amendment issues, employment law and the death penalty.

Simply stated, more is at stake as Alito -- who has resolutely established a conservative legal agenda -- is likely to change the court's ideological balance.

This morning President Bush had breakfast with Alito to wish him well and do a final push for his nominee. Saying that the 55-year-old jurist had "conducted himself with such dignity and class," Bush declared the man picked to replace O'Connor "eminently qualified."

"Sam's got the intellect necessary to bring a lot of class to that court," Bush added. "He's got a judicial temperament necessary to make sure that the court is a body that interprets the law and doesn't try to write the law." The president closed by saying -- as a warning shot to Democrats entertaining a filibuster -- that it was critical Alito receive "a fair hearing and an up or down vote on the Senate floor."

On the eve of the confirmation hearing, Sen. Patrick Leahy, D-Vt., the ranking Democrat on the Senate Judiciary Committee, said he was troubled to learn that a Republican member of the committee, South Carolina Sen. Lindsey Graham, participated in the so-called "murder boards" to prepare Alito for his hearing. No doubt Democrats will argue it is unethical for a member of an independent committee evaluating a nominee's qualifications to have coached the nominee in advance. Get ready for some fireworks on this issue.

A recent Harris Poll shows Americans divided on Alito's confirmation, so count on tough grilling on these key areas, among others: 

Democrats cannot wait to cross-examine Alito on two 1985 documents in which he stated the Constitution did not protect a right to abortion and advocated a long-term strategy to overturn Roe vs. Wade by gradually chipping away at it. Alito's supporters respond that he has twice voted to invalidate restrictions on abortions, and that his 15 years on the bench show he exercises judicial restraint and respects precedent. The rebuttal to this, of course, is that as a Supreme Court justice, Alito can overturn precedent. 

Abortion remains front and center for the court.  Although it has already been argued, Alito could play a role in Ayotte vs. Planned Parenthood, the New Hampshire parental-notification case, because it will have to be reargued next term if the current justices deadlock.  And it is just a matter of time before the Supreme Court agrees to hear a challenge to the federal law banning late-term abortions. 

This has gotten very little media attention, but it may be Alito's Achilles' heel, and frankly could do more to derail his nomination than any other issue.  In a 1985 job application, Alito wrote that he disagreed with several Warren court decisions, including those on congressional reapportionment.  This is a stunning statement, not to mention a radical position, as the "one person, one vote" principle has been the cornerstone of American democracy since the Supreme Court decision of Baker vs. Carr in 1962. 

Alito's time as a federal judge reveals he seldom sides with criminal defendants. And he has ruled restrictively on death-penalty appeals. 

With the recent brouhaha over Bush's secret spying program, several senators have told Alito they plan to question him on the scope of the president's authority to allow warrantless eavesdropping.  Senators will be armed with a recently released 1984 memo in which Alito wrote that the attorney general should have absolute immunity from being sued for approving illegal, warrantless wiretaps, though Alito counseled taking a more moderate approach in arguments before the Supreme Court.

Despite the anticipated mud wrestling with senators, the filibuster appears unlikely to be invoked, and Samuel Alito looks set to be confirmed as an associate justice.