Alito faces Senate Judiciary Committee

Tom Raum

WASHINGTON — Samuel Alito is no John Roberts. Roberts wooed senators of both parties with a dazzling command of legal precedent and social ease to win confirmation as Chief Justice of the United States.

And, as Democrats on the Senate Judiciary Committee kept reminding Alito on Tuesday, neither is he another Sandra Day O’Connor, the retiring justice whom the conservative jurist would succeed.

O’Connor’s moderate views on abortion and other social issues often made her the swing vote on a host of crucial 5-4 rulings.

“You are replacing someone who has been the fulcrum on an otherwise evenly divided court,” Sen. Joseph Biden, D-Del., told Alito.

Besieged with such comparisons, Alito navigated his way through Day Two of his confirmation hearings with mild manners and a course that seemed charted to not upset his chances of Senate confirmation, which now seems likely.

His day’s mission — hour after hour — seemed to be to say nothing particularly attention-grabbing, out of character, or reflecting anger or lack of preparation.

When he defended his writings and opinions of the past, including divisive ones on abortion, presidential powers and strip searches, he sought to provide context — and to signal flexibility.

He dryly recited case law and details.

“He was quite confident,” said James Thurber, a political scientist at American University. “He’s smart, articulate and polite.”

“And unless there is a major stumbling or bombshell, I think he will be confirmed,” Thurber said.

Outnumbered Democrats appeared to lack the muscle to stop the nomination, and seemed increasingly unlikely to mount a filibuster to delay the vote, which could give Alito opponents more time to try to rouse the public, and senators, to block the nomination.

Alito defended past opinions in his 15 years as a judge on the 3rd U.S. Circuit Court of Appeals, and his writings as a Reagan administration lawyer before that. But in some instances, Alito seemed to be hedging on them.

He opposed abortion as a Reagan administration official in the 1980s. Yet he testified that the Constitution protects the right to privacy, a basis for the 1973 Roe v. Wade decision that legalized abortion. If confirmed, he would approach the issue of a woman’s right to abortion with an open mind, he said.

But he also defended his 1991 dissent in a Pennsylvania case in which he supported a requirement that women seeking abortions must notify their husbands.

Alito said he agrees with retiring O’Connor’s assertion in 2004 that President Bush does not have a blank check to wage war. But Alito stopped short of commenting on the legality of the president’s warrantless domestic eavesdropping program or harsh treatment of terror-war detainees.

Fred McClure, a Republican attorney who worked in the Reagan and first Bush administrations and helped shepherd through the Senate the nominations of Justices Antonin Scalia, David Souter and Clarence Thomas, said Alito exhibited “a calmness that is holding him in good stead.”

Still, McClure cautioned, “It’s a marathon type of experience” and the hearings could still get much more tense. “There will be other rounds,” he said.

Alito sidestepped repeated questions on the court decision that settled the 2000 election in favor of Bush. He disputed Democratic charges of a bias toward favoring broad executive-branch authority.

And he sought to distance himself from his membership in a Princeton alumni group known for its opposition to opening the school to women and minorities — even though he cited that membership in a 1985 application for a Justice Department job.

Although not as smooth as Roberts, Alito did show “a mixture of being totally non-confrontational while also standing up for his position and being able to summon up a lot of detail,” said Fred Greenstein, a Princeton political science professor.

Alito couldn’t do much about senators singing the praises of Roberts and O’Connor. But there was one former Supreme Court nominee he clearly didn’t want to be linked to: Robert Bork.

He told senators he disagreed with some of Bork’s writings, even though he once praised him lavishly.

And he managed to avoid the kind of answer that helped sink the Bork’s nomination 1987. Asked why he wanted to serve on the nation’s highest court, Bork startled even some supporters when he said because it would be an “intellectual feast.”

Asked the identical question by supportive Sen. John Kyl, R-Ariz, Alito was ready.

“This is a way for me to make a contribution to the country and society,” Alito said.

While the courts have an important role to play, he said, it is a limited one. “So it’s important for them to do a good job of doing what they’re supposed to do, but also not to try to do somebody else’s job.”

Something there for everyone.

(Tom Raum has covered Washington for The Associated Press since 1973.)

A short biography of Alito The Associated Press NAME Samuel A. Alito, Jr. AGE, BIRTH DATE 55; April 1, 1950, in Trenton, N.J. EDUCATION B.A., Princeton, 1972; J.D., Yale, 1975 EXPERIENCE Judge, 3rd U.S. Circuit Court of Appeals, 1990-present; U.S. attorney for New Jersey, 1987-1990; deputy assistant to the U.S. attorney general, 1985-1987; assistant to the U.S. solicitor general, 1981-1985; served in the Army Reserves from 1972 until 1980 when he was discharged as a captain. FAMILY Alito and his wife, Martha-Ann Bomgardner, live in West Caldwell, N.J. They have two children, a college-age son, Philip, and a younger daughter, Laura. His late father, Samuel Alito Sr., was director of New Jersey’s Office of Legislative Services from 1952 to 1984. Alito’s sister, Rosemary, is an employment lawyer in New Jersey. QUOTE “Judges must also have faith that the cause of justice in the long run is best served if they scrupulously heed the limits of their role rather than transgressing those limits in an effort to achieve a desired result in a particular case.” — from his response to a Senate Judiciary Committee questionnaire.