Stage set for showdown over Alito

The stage is set and the show is about to begin: Confirmation hearings start Monday for Samuel Alito '72, President Bush's pick to replace retiring justice Sandra Day O'Connor on the Supreme Court. If confirmed, Alito would be Princeton's ninth justice on the high court and its first since 1955.

In the coming days, Alito must undergo several days of questioning by the Senate Judiciary Committee, including addressing serious concerns committee Democrats have expressed about his past membership in a controversial conservative alumni group, Concerned Alumni of Princeton (CAP).

Public discourse about Alito's merits and flaws has in recent weeks reached a fever pitch. The stakes are especially high, observers on all sides agree, since Alito's potential replacement of the moderate O'Connor is expected to make the Supreme Court more conservative in ways that Chief Justice John Robert's replacement of former Chief Justice William Rehnquist did not.

Accordingly, Alito's hearings will likely be more adversarial than Roberts' were for several reasons, legal scholar and University Provost Christopher Eisgruber '83 said in an e-mail. "This is the President's second consecutive very conservative nominee. The president sometimes gets a free pass on the first one, but not on the second," he explained, pointing to Ronald Reagan's experience with failed nominee Robert Bork after his first nominee, Antonin Scalia, the court's current arch-conservative, was confirmed.

Another complicating factor is President Bush's weakened political standing after the recent uproar over his authorization of domestic eavesdropping by the National Security Agency, Eisgruber said, further noting that Roberts was unusually deft during his confirmation hearings. "Sam Alito might match him, but there's no guarantee."

Though Alito's opponents have strongly criticized his conservative judicial philosophy, experts say Alito's likely reluctance to confront those judicial controversies head-on will make so-called character issues a greater focus of the hearings.

"You're not going to sink [Alito's] candidacy on something as abstruse as unitary powers," prominent conservative legal scholar and University politics professor Robert George said in an interview.

"To sink the candidacy you need to get something out of him about whether or not the wiretaps are lawful, and he's just not going to comment," George said, referring to the uproar over the domestic spying revelation.

"If you're going to be effective in defeating him, you can try to bruise him with these ideological things and the real attack will have to be something personal."

Democrats have seized upon Alito's former membership in CAP, which has been billed by critics as opposing coeducation and minority enrollment at Princeton, as one such personal issue.

Most notably, Sen. Ted Kennedy (D-Mass.) has called CAP "anti-women" and "anti-black" and placed Alito's CAP membership second in his list of five credibility flaws in a Washington Post op-ed published Saturday.

Reflecting a growing scrutiny of CAP, the liberal advocacy group People for the American Way dedicated much of its 155-page report condemning Alito to his CAP connection.

"There are two things about CAP. One, that someone would belong to such a group speaks volumes about that person," said the group's deputy legal director, Judith Schaeffer '74. "The fact of membership is part of [Alito's] prejudicial record on civil rights."

"The second thing is that he says he has no memory of this," she added, referring to Alito's failure to recall his membership in sworn testimony despite touting his CAP membership in a 1985 job application for a position in Ronald Reagan's justice department.

Alito's supporters, on the other hand, dismiss the significance of his past membership in the group. "I have no idea what CAP was saying in the '80s and I can't imagine Sam [Alito] had anything significant to do with them," Alito's Yale Law School roommate Mark Dwyer '72 said.

"Sam has none of those retrograde opinions. Sam's a guy from Trenton who's an Italian immigrant. To say that he's elitist is an absurd notion," Dwyer added.

Fox News analyst and former New Jersey Superior Court judge Andrew Napolitano '72, who served on CAP's board, similarly dismissed Alito's connection to the group, accusing critics of being "more concerned with keeping [Alito] off the bench than with the truth."

"Liberal interest groups attack CAP as being anti-coeducation and anti-immigration," Napolitano said. "I expected this because it is a traditional tactic of these groups to paint conservative organizations with these brushes. Coeducation was in full bloom before CAP. CAP never argued against coeducation and minority admission."

Stephen Dujack '76, an outspoken critic of the group, was called by the committee Democrats to testify about CAP during the hearings, but for reasons still unclear, he was withdrawn from the witness list and asked to submit written testimony instead. (See full story.)

Such debate over character issues is common for a judicial nomination, Eisgruber said. "There's almost always some hint of scandal in a contested Supreme Court nomination, even if it is minor and back-burner. Sometimes such a scandal provides 'political cover' for a critic who has doubts about the nomination."

Alito's chances

Though the possibility of a Democratic filibuster hangs in the air, the existence of Republican majorities on the judiciary committee and in the Senate make the confirmation Alito's to lose, experts say.

"If he can avoid answers that are provocative, defensive, evasive or extreme, he should get confirmed," Eisgruber said, though he noted that the release of several controversial memoranda from Alito's time at the Justice Department had "provoked doubts among some senators."

"You might say that his job is to be a relatively boring witness, while at the same time demonstrating his intellect and decency. If he can be charming, too, that's a plus, but it is not necessary," Eisgruber said.

If Alito does lose, it will likely be because of a handful of senators willing to cross party lines. Judiciary committee chair Sen. Arlen Specter (R-Penn.) is more likely than any other on the committee to vote against his party, George said.

"The Democrats on the committee are the most liberal wing in the Senate — you don't find red state Democrats there," George said. "There's more of a chance of a Republican defecting if something comes up of a personal nature that causes a weakening in the case for Alito."

Should Alito earn the committee's approval, Napolitano said that 46 to 47 senators are almost assured to support him in the full Senate vote, the final one of the confirmation process. That leaves the remaining Republicans, all moderates, as the ones likeliest to cast the deciding votes.

These moderates, George said, include Rhode Island's Lincoln Chafee and Maine's Susan Collins and Olympia Snowe. "Beyond that, the pickings on the Republican side are going to be mighty slim for Democrats."

Moreover, George said, such "red state Democrats" as Arkansas' Blanche Lincoln and North Dakota's Byron Dorgan and Kent Conrad will be wary of opposing Alito in the floor vote.

"Red state Democrats have a very strong image in their mind of what happened to [former Senate Majority Leader and Senator from South Dakota Tom] Daschle, who was defeated by a candidate ... on grounds that he was too liberal and who made the judiciary a major issue," George said.

Drawing the line

Alito might also be less vulnerable to probing questions about his judicial philosophy, however, because of what scholars call the "Ginsberg precedent," a reference to current justice Ruth Bader Ginsberg's refusal to comment during her confirmation hearings on issues likely to be brought before the court.

To what extent Alito can defer to the Ginsberg precedent is still a matter of debate, with many claiming his extensive record of commentary on certain hot-button issues obliges him to answer questions about them.

"He'll be able to draw the line in the same place that Supreme Court Justice Souter, Justice Ginsberg, Justice Breyer and Justice Roberts drew it," Napolitano said, suggesting that Alito respond: " 'If [an issue] is likely to come before the court it would be unfair to the litigants for me to express an opinion on it [during these hearings].' "

George agreed, saying that the Ginsberg precedent puts such current controversial issues as abortion, eminent domain and the inclusion of the word God in the Pledge of Allegiance mostly off-limits for questioning.

He added, however, that in comparison to Roberts, Alito has "a much longer judicial record that can be explored, more of a paper trail, more to talk about." And the Ginsberg precedent won't apply "when it comes to older cases that [Alito has] gone on the record expressing some criticism or doubt about," George said, citing Alito's doubt about Baker v. Carr, in which the Supreme Court found a Constitutional basis for the principle of one man, one vote.

Also sure to be a contentious issue is Alito's dissenting vote in a case about spousal notification for abortion, Casey v. Planned Parenthood. But politics could complicate questioning for Democrats, who are wary of reminding voters that former Democratic Pennsylvania governor Robert Casey — whose son is now contesting Republican Sen. Rick Santorum's seat — enacted the abortion restrictions in question.

Style and substance

The style of Alito's testimony will also play a key role in the hearings. "The real play is for the public," George said. "The real play is to make sure Kent Conrad, Byron Dorgan and Blanche Lincoln don't even think about the possibility of voting no because the judge doesn't seem like a bad guy to their constituents. That is really who [Alito] has to play to. In the end of the day, it's the political pressure out in the states that's going to make a difference one way or another."

By most accounts, Alito is expected to be less suave than Roberts, the new chief justice, whose poise and wit during his hearings in September impressed observers.

"John Roberts has a warmth and charm and wit that is more endearing than Sam Alito's," Napolitano said. "These hearings will be less humorous, less warm, less folksy, more academic, more intellectual."

Still, Napolitano added, "Expect him to be as reserved, respectful and restrained than Roberts ever was ... I don't think there's a single Democrat on the committee whose knowledge of the law intellect and skills can match Mr. Alito's."

Doubts about Alito's performance surfaced in a Jan. 2 New York Times article, which included less-than-glowing reviews of his grace under questioning from Republican lawyers training him for the upcoming hearings.

One lawyer quoted in the piece said that Alito "is not going to be the well-manicured nominee" and others suggested that Alito probably couldn't match Roberts' confirmation hearings performance.

But Dwyer, Alito's former roommate, suggested that Republican handlers are downplaying his charm to lower public expectations of his performance in advance of the hearings.

"Sam is so cool," he said. "Sam has argued in front of the Supreme Court many times when very learned gentlemen were about to pour questions on him on special topics that were relevant because of the case. He handles that fine. Go in front of senators who are asking questions about things they don't know that well with questions from staff that they can't follow up — Sam will eat them up."

Regardless, Napolitano said, the style of Alito's performance probably won't sway votes unless he "loses his temper or talks about abortion." Barring that, he said, the judiciary committee will vote along party lines and in Alito's favor.

— With an update on Jan. 8, 10:45 p.m. EST.