January 11, 2006,
It's a standard feature of judicial confirmation hearings in the Bush years. The nominee is questioned by Republicans on the Senate Judiciary Committee, who try to establish his sterling credentials. Then he is attacked by Democrats, who try to show that he is too conservative, too pro-life, too insensitive to civil rights, too deferential to executive authority, ethically suspect, or in some other way unqualified to win Senate confirmation. After that, if Republicans believe Democrats have drawn blood, the next GOP senator to question the nominee will begin a repair operation, trying to rehabilitate the nominee before too much damage is done.
It's happened over and over in the last few years. But what was remarkable about the first day of questioning for Supreme Court nominee Samuel Alito was that Republicans rarely felt the need to do any repair work, for the simple reason that they never felt Democrats did much damage.
"It's going to be ugly," one Republican said early in the morning, before the questioning began, predicting that Democrats would try to savage Alito. But as things turned out, it wasn't ugly. Yes, some Democrats on the committee tried to attack Alito. But they just didn't make much contact. Judging from the reaction of those watching the staffers, the outside activists, and the press it not only wasn't ugly; it was boring. "Boring makes me very, very happy," said another Republican during the afternoon break.
By that time Democrats and their supporters were looking a bit concerned; they knew things were not going their way. Their faces brightened a bit later on, when the questioning got to Wisconsin Democrat Russell Feingold, and later to New York's Charles Schumer, who hit Alito hard on the issue of abortion. But at the end, nobody would judge the day a success for Democrats.
After Chairman Arlen Specter ran Alito through a series of questions similar to his questioning of Chief Justice John Roberts last summer, Alito faced the big, gray threesome of senior Democrats: Patrick Leahy, Edward Kennedy, and Joseph Biden. They attacked on all the main issues that have been raised against Alito his opinions on presidential powers, the Concerned Alumni of Princeton, abortion, his Vanguard investments but each time Alito's answers were cool, understated, and mostly about process; the Democrats just couldn't connect. Alito repeated his oft-made statement that no one, including the president, is above the law. He said he couldn't remember much of anything about the Princeton group (by far his weakest and least believable assertion). He said he would not view an abortion case today by saying, as he had in 1985, that the Constitution did not protect a right to abortion. And he painstakingly recounted his steps to guard against conflicts of interest and how he handled the Vanguard case. By the end of it, Biden was forced to say, "I don't think anybody thinks you are a man lacking in integrity. I don't think anybody thinks that you are a person who's not independent."
It was not exactly what People for the American Way and the Alliance for Justice wanted to hear. By early afternoon, the Democrats had become so exhausted that even the flow of attack memos, which are usually released throughout the day to reporters covering the hearings, had slowed to a trickle. In the morning, Kennedy's office released detailed memos attacking Alito on executive power and Vanguard. Then came another memo about the Princeton group. And after that...nothing. The Democratic silence seemed another signal that the opposition was having trouble getting its act together.
One reason Leahy, Kennedy, and Biden couldn't get much done was that they would not stop talking. Late in the day, staffers released an analysis of how much time each senator had spent talking during his chance to question Alito. Each senator got 30 minutes for questions. Leahy, the chart showed, spent a little more than 18 minutes talking. Kennedy spent nearly 24 minutes talking. And Biden also spoke for about 24 minutes. Which meant that Alito himself spoke for just 11 minutes during Leahy's questioning, nine minutes during Kennedy's (which was extended slightly because of a question over the timer), and just six minutes during Biden's.
Republicans also spent lots of time talking; Ohio's Mike DeWine, for example, went on for more than 22 minutes. But they were trying to get Alito safely through the hearings, so each minute they spent talking meant one less chance for Alito to make a mistake. For Democrats, however, the gabbing made no sense at all.
Finally, late in the afternoon, Feingold got his chance. The Democrat from Wisconsin started by asking about the president's power and the FISA court, but moved on to suggest that the White House had coached Alito to say just what it wanted about presidential authority.
"Who was present at these practice sessions where these questions were discussed?" Feingold asked. "And who gave you feedback or suggestions or made any comment whatsoever on the answers you gave?"
"Nobody at these sessions or at any of the sessions that I had has ever told me what to say in response to any question," Alito answered. "The advice that I've received has gone generally to familiarizing me with the format of this hearing...But nobody has told me what to say. Everything that I've said is an expression of my own ideas."
"I don't question that, Judge," said Feingold, who then went on to question precisely that. "Have you received any other advice or suggestions directly or indirectly from anyone in the administration on how you should answer these questions?"
"Not as to the substance of the question. No, Senator."
"Only as to the style?"
"That's correct; as to the format. Not as to what I should say I think about any of these questions. Absolutely not. I've been a judge for 15 years. And I've made up my own mind during all of that time."
That answer might have seemed definitive, but Feingold would not accept it. "Does it strike you as being inappropriate," he said, "for members of the Department of Justice or the White House staff who are currently defending the president's actions in the NSA domestic spying program to be giving you advice on how you might handle questions about that topic in the hearing?"
"It would be very inappropriate for them to tell me what I should say," Alito answered. "And I wouldn't have been receptive to that sort of advice. And I did not receive that kind of advice."
Later, Schumer tried the same determined approach on the question of abortion. But he began with perhaps the most disingenuous premise ever attempted at a major confirmation hearing. In 1985, you said that the Constitution does not protect a right to abortion, Schumer told Alito. "Now let me ask you: Do [those words] accurately reflect your view today? Do you stand by that statement? Do you disavow it? Do you embrace it? It's OK if you distance yourself from it, and it's fine if you embrace it. We just want to know your view."
If anyone believed that it would be "fine" with Schumer if Alito stated flatly that the Constitution does not protect a right to abortion, then they have not been following the politics of judicial confirmations, or indeed American politics in general, for the last 30 years. Nevertheless, Schumer kept trying to tell Alito that all would be okay, whatever he said. "It doesn't matter which way you answer," Schumer said.
Alito, amazingly enough, wasn't buying it. He said the 1985 statement "was an accurate statement of my views at the time." But today, he continued, if presented with the question on the Court, he would begin by considering the weight of precedent of Roe, Casey, and other abortion cases. Only later, if it came to that, "I would have to go through the whole judicial decision-making process before reaching a conclusion."
No matter how hard Schumer tried, he could not get Alito to budge from that answer. Finally, Schumer gave up. "Well, OK," he said. "I know you're not going to answer the question. I didn't expect really that you would."
As she left the hearing, Nan Aron, head of the Alliance for Justice, conceded that Republicans had had a good morning, but said she believed the tide had begun to turn with Feingold's questioning. Certainly Feingold and Schumer had given the anti-Alito coalition what it wanted to hear. But few others could see any real damage done. After ten hours of questioning, Alito seemed in a stronger position than ever.
Byron York, NR's White House correspondent, is the author of The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President and Why They'll Try Even Harder Next Time.