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Democrats Set for Their Shot at Bush's Judicial Nominee

Posted on: Monday, 9 January 2006, 15:00 CST

By Sheryl Gay Stolberg

The showdown begins Monday at high noon.

Even before Judge Samuel Alito Jr. arrives on Capitol Hill for his Supreme Court confirmation hearings, Democrats on the Senate Judiciary Committee appear lined up solidly against him.

The big question is whether Democrats will try to block the nomination by filibuster, and if so, which side will be left standing when the political dust settles.

For Alito, the son of an Italian immigrant who grew up in the New Jersey suburbs with a dream of being a major-league baseball pitcher, the hearings are a hurdle between him and an even bigger dream. After months of meeting senators privately and staying quiet before the news media, they will provide him with a forum to emerge from the shadow of the previous nominee, Chief Justice John Roberts Jr.

The hearings, expected to last at least four days, will also give Alito his first opportunity to confront Democratic critics. How he answers their questions, on topics like his 1985 statement that the Constitution does not protect a right to abortion and the issue of domestic spying, will determine whether Democrats try to keep him from the job.

Democrats, hoping to pick up seats in this year's midterm elections, have almost as much at stake as the nominee himself. They are under intense pressure from liberal advocacy groups to oppose Alito, and they are acutely aware that if he is confirmed to replace Justice Sandra Day O'Connor, a critical swing vote, he could tilt American jurisprudence in a more conservative direction for decades.

Yet a filibuster would be risky business, and Democrats know it.

Senator Charles Schumer, Democrat of New York and a member of the Judiciary Committee, said there was a consensus among his delegation that although "it's hard to block a nominee, blocking this nominee is a possibility." But Schumer said no decision would be made until the hearings are over.

The hearings before the 18-member Judiciary Committee 10 Republicans and eight Democrats will unfold against a political landscape that is vastly changed since last autumn, when Roberts was confirmed by a Senate vote of 78 to 22.

Washington today is consumed with the revelation that President George W. Bush authorized the National Security Agency to eavesdrop on Americans, and the issue of domestic spying will be a prominent feature of the Alito hearings, perhaps as much so as abortion.

For Bush, who needs the kind of victory on Capitol Hill that an Alito confirmation could provide, the hearings may offer a welcome distraction from the troubles of the Republican Party, which has been buffeted by criticism on several fronts.

Though no Democrats have announced how they will vote, it is clear that Alito will attract less support from them than Roberts did. On the Judiciary Committee, three Democrats Russell Feingold and Herb Kohl of Wisconsin and Patrick Leahy of Vermont, the panel's senior Democrat voted to confirm Roberts as chief justice.

In a recent interview, Leahy made clear that he is far less comfortable with Alito.

"Judge Alito, who are you?" Leahy said in mock conversation with the nominee, after explaining that he spent nearly three hours with Roberts before his hearings but has had only one brief meeting with Alito.

"You're going to be on there, taking the seat of the one person who has demonstrated that she's willing to be a swing vote. To what extent are you willing to show the same kind of independence?"

But the polls work in Alito's favor; they have found that a majority of Americans support his confirmation. The midterm elections could also help his chances, because Democrats facing re- election in Republican-leaning states will be loath to oppose the nomination or join a filibuster. With 44 Democrats and one independent in the Senate, and 41 votes required to sustain a filibuster, the margins are slim.

At the same time, the Senate has already fought a filibuster battle. Last year, when Democrats were blocking some of Bush's judicial nominees for lower courts, the Republican leadership threatened to change Senate rules to bar filibusters of judges. Democrats, in turn, threatened to grind business to a halt. A meltdown was averted when a group of seven Democrats and seven Republicans signed a pact saying they would filibuster judicial nominees only under "extraordinary circumstances."

Republicans say they expect that pact to hold.

And even some Democrats contend privately that a filibuster fight would not be worth it. They say the party should focus on issues that resonate more strongly with voters. To that end, Democrats intend to use the Alito hearings to put a spotlight on domestic spying.

A string of Democratic senators, including Schumer, Leahy, Feingold and Edward Kennedy of Massachusetts, have signaled their intention to question Alito on the spying issue. They will try to draw a link between the program and a 1984 memo in which Alito, then a lawyer for the Reagan administration, argued that the attorney general should be immune from lawsuits for ordering wiretaps without a court order.

On that score, Democrats will get a boost from the Republican chairman of the Judiciary Committee, Arlen Specter of Pennsylvania, who intends to conduct hearings on the domestic spying program and intends to question Alito about whether Congress should have been informed.

But Specter, an ardent supporter of abortion rights, said in an interview that the spying issue will be second on his agenda; as was the case with the Roberts hearings, the chairman's first questions will be about abortion.

"I intend to begin the hearing with the question of his 1985 statement that the Constitution does not protect the right to abortion," Specter said, and he added, "I think in the popular mind, the woman's right to choose is still the dominant issue."

Source: International Herald Tribune

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