The Alito Hearings
I watched almost none of the hearing live Monday, except for Alito's statement, since the rest of the day was Senatorial posturing, or in the case of Senators Kennedy and Schumer, indicting. But Tuesday was much more interesting, almost like being back in con law class.
Judge Alito was outstanding: calm, measured, thoughtful, as knowledgable as Roberts (like Roberts, he has total recall of many cases without notes), if a bit less sparkling. If his supporters were worried about defensiveness in the face of attacks from liberal senators, he did not show any.
Predictably, Kennedy and Schumer were the most hostile. Schumer focused on abortion, trying to get Alito to say whether his personal opinion on abortion's constitutionality had changed since the early 80s (when he thought Roe was decided wrongly).
Senator Feingold was interesting — a bit aggressive, but generally more respectful. I disagree with Hugh Hewitt about Feingold's exchange with Alito over his prepping for the hearings. I don't think the Wisconsin Senator was being a jerk. Feingold has staked out a position very critical of NSA spying. I thought he was pushing to see whether the administration officials Alito worked with had laid out any legal defense of the program in their prep sessions with Alito. It is hard to believe that he was actually trying such a weak approach as to suggest that Administration officials had fed him answers for the confirmation hearing, as Hugh suggests.
Senators Dianne Feinstein and Arlen Spector also both focused on abortion— an obsession for both of them. As John O'Sullivan wrote for the Chicago Sun Times on Tuesday, Alito gives every impression from his 15 years on the Appeals Court of being the kind of conservative who is cautious and not a boat rocker (not likely to overturn many existing precedents). This should be reassuring to the hard line pro—abortion types, but it won't be.
I think Alito is a lock. Today will continue the questioning and then the session will close for FBI reports. Thursday is for witnesses for and against Alito. Many substantive witnesses, including seven appeals court judges, both Democratic and Republican, who back him, will testify. This is very unusual. There may be an additional round with Alito on Friday.
The hearings so far have got to be causing major heartburn for the left and their interest groups. There is almost no chance of a successful filibuster. Dems will never get to the 41 votes on this they need to sustain a filibuster, and if they are pressured by the interest groups to try a filibuster, it will be terrible for their image. Alito is not scary at all. A desperate attempt to block him by extrtaordinary means, and against the deal of the Gang of Fourteen, will just demonstrate how extreme and uncompromising the Democrats are. A successful filibuster would probably lead to the nuclear option, which given that the Republicans may some day be a Senate minority again, is not the best option for how this could play out. The Democrats may get in the high 30s on no votes (as opposed to 22 against Roberts), but Alito will win.
I think Senator Kohl from Wisconsin may vote for him on the committee. Kohl is up for re—election in a 50—50 state, and there is pressure to get the former Governor Tommy Thompson to challenge him in 2006. Alito may also get votes from among the following group of Democrats in red states or those facing re—election battles in 06 : Robert Bryd, Joe Lieberman, Ben Nelson,
Bill Nelson, Mark Pryor, Blanche Lincoln, Mary Landrieu, Brian Dorgan, Kent Conrad, Tim Johnson, and maybe Ken Salazar.
It is hard to imagine anyone who voted against Roberts, voting for Alito. President Bush would have had to nominate a Clinton appointee to the Appeals Court to get some or most of these 22 hardliners. Only Lincoln Chafee among the 55 Republicans is a possible no vote, and given a tough primary fight this year, he may go along too.
It is to the President's great credit that he has appointed two brilliant Appeals Court judges — the best of the best (in Alito's case, a fallback after the Miers false start). The Miers detour is all but forgotten now that the confirmation hearings have made their impression on the public. Justice Roberts and future Justice Alito are exactly the kind of people fair—minded Americans, whether Republicans or Democrats, should want and hope to see nominated by a Republican President.
The Democrats have failed to paint Alito as out of the mainstream, but done a good job painting themselves that way, and in a few cases, reinforced their reputation for vanity and rudeness.
Richard Baehr is Chief Political Correspondent of The American Thinker.