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Confirmation hearings end with Alito expected to be confirmed

WASHINGTON—Samuel Alito ended his testimony before the Senate Judiciary Committee Thursday amid a sense that Democrats are resigned to the fact that the conservative jurist will become a member of the Supreme Court.

The hearings continued with testimony from seven current and former appellate court judges from Alito's circuit, an unprecedented event that provoked comments from Democrats and others about the propriety of judges being involved in the political nomination process.

Democrats were considering whether to seek a delay in the committee's vote Tuesday on Alito, a decision that could signal whether they'll attempt to block the nomination.

Alito appeared to have solid support from Republicans. Many Alito backers were hoping to win enough Democratic votes to push his support above 60 votes. There are 55 Republicans in the Senate, 44 Democrats and one independent who tends to vote Democratic.

Grilled by Democrats on issues ranging from abortion to his integrity, Alito emerged without significant damage after four days as a sworn witness.

"I'd be the same sort of justice in the Supreme Court as I've been a judge on the court of appeals," said Alito, a 15-year veteran of the 3rd Circuit Court of Appeals. "If anybody looks at my record on the court of appeals, they can get an idea about the way I approach the work of being a judge. And that's what I would try to do on the Supreme Court."

It was that record that came under much scrutiny during his testimony, with Republicans portraying it as that of a mainstream conservative and Democrats arguing that it signaled an ideological predisposition that could change the balance of the Supreme Court.

"The evidence before us makes it very hard to vote yes on your nomination," said Sen. Charles Schumer, D-N.Y. "While you give the appearance of being a meticulous legal navigator, in the end, you almost always choose the rightward course."

But with few other senators in Washington other than Judiciary Committee members, it was difficult to determine whether Democratic opposition was deep-seated enough to make Alito's confirmation vote the closest since Clarence Thomas was confirmed 52-48 in 1991.

Senate Democratic leader Harry Reid of Nevada said Thursday that Democrats would meet next week to discuss how to proceed on the nomination. They would need 41 votes to sustain a filibuster, a procedural tactic that requires 60 votes to end debate and bring a nomination to a vote. But while more than 40 senators may vote against Alito, it isn't clear whether those same senators would agree to block his nomination through a procedural step.

Sen. Ben Nelson of Nebraska, a conservative Democrat who helped broker a deal to limit judicial filibusters last year, issued a statement Thursday indicating he might support Alito.

"So far, I have seen nothing during my interview with the nominee, the background materials that have been produced or through the committee process that I would consider a disqualifying issue against Judge Alito," he said.

The seven current and former 3rd Circuit judges who appeared to support Alito all described him as a colleague of the highest integrity and intellect and the coolest temperament.

Led by Edward Becker, a senior judge on the court, they offered mostly personal testimony about the long years they spent working with him.

"If anybody knows Judge Alito, I do," Becker said. He described Alito as "modest and self-effacing" and said he was "brilliant and analytical."

"Sam is not doctrinaire, but is open to tempering views and will often change his mind" in the deliberative process, Becker said.

"He has the intellect to sit on the Supreme Court, and in my view would be a strong, independent justice."

The judges' testimonials were clouded by concerns about whether they ought to have been given.

Only rarely have sitting judges appeared to offer testimony on behalf of a nominee. The judicial canon of ethics prohibits judges from serving as character witnesses at criminal trials, but permits them to offer information in certain other proceedings.

Sen. Patrick Leahy of Vermont, the top Democrat on the Judiciary Committee, refused to ask the judges questions, saying that if Alito became a Supreme Court justice, he would have to decide on appeals from cases the judges heard. Most Democrats followed suit.

Sen. Russell Feingold, D-Wis., wondered whether the judges' testimonials would require Alito to remove himself from cases that were on appeal from one of those judges. Alito said he hadn't given the question any thought, but promised to get back to Feingold with an answer.

Two other former federal judges—both appointed by Democrats—said the sitting judges' appearance was inappropriate. While they agreed that nothing in the judicial canon of ethics prohibited the judges from appearing, they said it was probably ill advised for several reasons.

"Like it or not, these confirmation hearings have become increasingly political proceedings," said Judge Patricia Wald, who retired from the D.C. Circuit Court of Appeals in 1991. "The interjection of sitting judges as witnesses can be, no matter how conscientious, perceived by the public as the judges being advocates. In that sense, it's not a good idea for the perception of federal judges as impartial."


(c) 2006, Knight Ridder/Tribune Information Services.

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