Hearings yield little insight on Alito would decide key issues

WASHINGTON—In three days of testimony before the Senate Judiciary Committee, Judge Samuel Alito explained both everything and nothing about his judicial philosophy, depending on whom you ask.

Alito, whom President Bush has nominated to replace Justice Sandra Day O'Connor on the Supreme Court, revealed himself to be either a restrained, open-minded jurist with no agenda or a partisan ideologue who would yank the court sharply rightward—again, depending on whom you ask.

As the hearings concluded Friday with Alito headed for near-certain confirmation, it became clear that the 18 hours of back-and-forth between senators and the nominee failed to offer much insight into Alito's decision-making process or beliefs.

Instead, it merely produced enough generalities to draw just about any conclusion about what kind of justice Alito would be on the high court.

The hearings left many on both sides wondering about the value of this part of the judicial confirmation process, with Sen. Joseph Biden, D-Del., openly suggesting the hearings should be abandoned.

"I've reached a conclusion, after all these years, that we probably shouldn't even have these hearings," Biden told NBC's "Today Show" Thursday. "We should just go to the floor of the United States Senate, debate the relative merits of the positions of the nominee, and vote."

Sen. Arlen Specter, R-Pa., the chairman of the committee, said that even in a hearing as lengthy as Alito's, there would always be a need for more time to probe the nominee.

"Some senators asked the repetitive questions again and again and again and did not really make effective use of the time," he said. "But that's an individual senator's choice. Nobody can tell a senator what questions to ask."

Alito picked up Specter's endorsement on Friday, a huge step toward confirmation. Specter is one of the Senate's leading proponents of abortion rights and has indicated he wouldn't vote for a nominee who would help overturn Roe v. Wade, the 1973 ruling that legalized abortion.

Democrats on Friday moved to delay Tuesday's scheduled committee vote on Alito by at least two days or as much as a week. Specter resisted the delay, but said he would negotiate with the committee's ranking Democrat, Sen. Patrick Leahy of Vermont, over the weekend.

Any postponement could affect a final confirmation vote by the entire Senate. Bush would prefer to have Alito confirmed before he delivers his State of the Union speech to a joint session of Congress on Jan. 31.

A delay also would give anti-Alito groups more time to lobby for his defeat and to air commercials against him in states with fence-sitting senators. But the best that Democrats appear to be able to do now is make his vote the closest since Clarence Thomas' 52-48 confirmation to the Supreme Court in 1991.

Three other pro-abortion rights Republicans—Sens. Olympia Snowe and Susan Collins of Maine and Lincoln Chafee of Rhode Island—said they saw no reason to block a vote on Alito through a filibuster. That procedural tactic requires 60 votes to end debate and bring a nomination to a vote.

"I don't think there is any life in it as a political issue," Specter said about the nomination, while predicting Alito's confirmation.

But Democrats, who will meet Wednesday to decide on a course of action, could still maneuver to make a political statement. If Alito gets fewer than 60 votes, it would send a signal to the White House that any future nominee like Alito could face a filibuster.

Alito's performance before the committee wasn't unlike those of every nominee since Robert Bork, whose candidly conservative assertions fueled his rejection in 1987 and set the stage for hearings that are more game-like than probative.

Alito wasn't evasive and largely avoided flat refusals to answer questions. He also adroitly disarmed Democratic interrogations by responding with intensely technical answers about case law and a constant refrain that he decides all cases with an "open mind" and according to the facts.

But his answers also committed him to nothing beyond general platitudes that nearly all judges accept.

Alito embraced the concept of not lightly overturning court decisions, saying precedents were entitled to "respect" and bolstered the court's credibility, but weren't inexorable commands. Senators never successfully got him to explain, though, under what "special circumstances" Alito might consider abandoning precedent.

He acknowledged that Brown v. Board of Education, which ordered public schools integrated, was settled law and that the notion of integrated schools wasn't likely to be challenged. But he refused to extend the same status to Roe v. Wade.

Senators failed to get Alito to explain how his view of precedent helped explain the difference between the two.

Alito also embraced in vague terms the ideas that the Constitution protects privacy, that the president is no more above the law than anyone else and that diversity is an important value in higher education. None is particularly controversial or telling about a judge's outlook.

When do privacy rights become subordinate to government authority? When does the law permit the president to suppress individual rights in the name of national security? Is diversity a compelling enough interest to justify race-conscious admissions policies?

Alito never explained how he might apply those principles, which vary dramatically from one judge to another, on the high court. Often, he wasn't pressed to go further.

Senate Democrats, who essentially had the burden of proving why Alito shouldn't be confirmed, seemed to divide their questioning by interest.

Sen. Edward Kennedy, D-Mass., focused on Alito's failure to recuse himself from an appellate case and his claim of membership in a conservative Princeton alumni group. Sen. Russell Feingold, D-Wis., spent much of his time probing issues of executive power. Sen. Dianne Feinstein, D-Calif., sought answers on abortion. Sen. Charles Schumer, D-N.Y., perhaps the most prosecutorial of the Democrats, quizzed Alito on his reliance on precedents.

All asked pointed questions at times but often didn't follow up, and they almost never matched Alito's mastery of legal subjects. Conservatives have said that Alito just outwitted his questioners. Liberals have said Alito dodged.

Whatever the spin, the hearings seemed to leave many wanting more insight into a jurist who could sit on the high court for the next 30 years.

"There are many, many complex issues," Specter said. "Even when you have 30 minutes and 20 minutes, that's not really enough time to explore all the issues. I would have liked to have followed up on many of the answers. But I only covered four subjects, five subjects in the course of 50 minutes, and I would have liked to have pursued them longer."


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

Need to map