Alito Called Harder Sell in Substance and Style

Times Staff Writer

Republicans and Democrats agree about little in Washington these days, but they concur on this: The confirmation hearings for Supreme Court nominee Samuel A. Alito Jr., which open today, will be utterly unlike those for John G. Roberts Jr.

For one, the nominee is different. Roberts was smooth and youthful-looking, with charmingly fidgety children and just two years on the federal bench. By contrast, Alito has displayed the physical awkwardness of an absent-minded professor and -- more significantly -- has 15 years' worth of rulings as a federal judge for critics to pick apart.

Second, the political climate in Washington has shifted considerably in the three months since Roberts was confirmed as chief justice.

These days, many Republicans are preoccupied with containing the damage from ongoing controversies. These include whether President Bush was justified in authorizing domestic spying by the National Security Agency, a dispute that strikes at a core function of the Supreme Court -- presiding over the system of checks and balances between the executive and legislative branches.

Democrats, meanwhile, are looking for ways to capitalize on this and other issues, and the Alito hearings offer a venue with a national television audience.

"Our goal will be to highlight the difference between the parties on ... key constitutional issues," said Jim Manley, a spokesman and strategist for Senate Minority Leader Harry Reid (D-Nev.).

Roberts' reassuring manner and flashes of humor helped win him unexpectedly high support from Democrats after his September hearings before the Senate Judiciary Committee. And to the extent Democrats worried that he was more politically conservative than they wanted, the fact he would replace an equally conservative justice, former Chief Justice William H. Rehnquist, made him more palatable.

In the end, the Senate's 44 Democrats split evenly over Roberts, who won his confirmation vote, 78 to 22.

In nearly every way, Alito is expected to be a more controversial nominee.

For instance, he wrote in a 1985 job application with the Justice Department that he was "particularly proud" of his efforts to promote the view "that the Constitution does not protect a right to an abortion," a red-flag statement for core Democratic voters.

In addition, as a Justice Department lawyer, Alito argued for an expansive interpretation of presidential power. The issue resonates amid the furor over domestic spying, in which the White House has argued that the president's authority as commander in chief gave him the right to order wiretapping without warrants.

Moreover, heightened Democratic opposition is expected because he would replace Justice Sandra Day O'Connor, one of the court's swing votes on issues such as abortion rights.

There is "perceived to be more at stake in terms of the balance of power on the court on certain key issues," said Sen. John Cornyn (R-Texas), a Judiciary Committee member and a firm Alito supporter.

Noting the uncertainty over whether another Supreme Court vacancy would occur during Bush's second term, Cornyn said he thought there might be some sense among Democrats "that it's now or never, in terms of efforts to try to defeat his nominees."

Jennifer Duffy, who studies the Senate for the nonpartisan Cook Political Report, said she expected Alito to gain confirmation to the high court, but by no more than a handful of votes.

"He's going to have to make a really big mistake, or Democrats are going to have to succeed in turning him into a boogeyman, or he will be confirmed," Duffy said. "But the Democrats' efforts haven't succeeded so far, and they're running out of time."

Congressional strategists on both sides said they shared Duffy's view of the vote count. But with Republicans weakened, most recently by the influence-peddling scandal surrounding former lobbyist Jack Abramoff, some Democrats are mulling whether to try to thwart Alito's confirmation through a filibuster, a tactic in which a minority party can block a vote by refusing to end debate.

"We are more apt to filibuster now than we were two weeks ago," said one Democratic leadership aide on Capitol Hill, who requested anonymity when discussing party strategy.

That view was bolstered by comments on Sunday talk shows by Democrats on the Judiciary Committee.

Asked on "Fox News Sunday" whether she would join a filibuster of Alito's confirmation, Sen. Dianne Feinstein of California responded: "If I believed he was going to go in there and overthrow Roe ... most likely yes."

Sens. Charles E. Schumer of New York and Edward M. Kennedy of Massachusetts also said they had not ruled out a filibuster.

Schumer told NBC's "Meet the Press" that "questioning Judge Alito is going to be really, really important." He said he hadn't made up his mind about how to vote and "whether to urge my colleagues in the caucus to filibuster. But he's got to answer a lot of questions."

And Kennedy, on ABC's "This Week," said that although there was "no plan" to block the nomination "at the present time, we're not eliminating any procedural actions by the Senate members or by the Democratic leadership."

Democrats say they are less worried than they were last year that Republicans would retaliate against a filibuster by pursuing the so-called nuclear option, in which the GOP would seek to change Senate rules to prohibit blocking votes on judicial nominees.

The reason for the lessened Democratic concern, said another party congressional aide, is that Republicans "are in bad, bad shape" because of the problems that have buffeted the GOP in recent months.

The aide, who requested anonymity when discussing the filibuster issue, said that even "when things were going OK" for the GOP last year, Republicans backed off from pushing for the nuclear option.

Republicans respond that a filibuster of Alito's confirmation would be a political mistake by Democrats, predicting that many voters would disapprove. They also say the party would have the votes it needed to retaliate against a filibuster with what GOP leaders prefer to call the "constitutional option."

"We're ready to do what needs to be done, if necessary, to ensure that he gets a fair up-or-down vote," said Eric Ueland, chief of staff to Senate Majority Leader Bill Frist (R-Tenn.).

During the Judiciary Committee's hearings, Democratic senators will try to link the domestic spying issue with the controversy over abortion by focusing on the concept of privacy.

"The question is, when Judge Alito goes before the cameras, will he be able to make his case or will people be turned off by some of his very conservative views?" said Manley, the aide to Reid. "The issue is larger than Roe vs. Wade -- it's the issue of privacy, whether it's NSA spying or reproductive rights."

When addressing privacy rights and other subjects, Roberts gave lengthy answers in a soothing manner. But Democrats complained that ultimately he said little of substance.

Given his much longer record on the bench, they are hoping Alito will be unable to use the same tactic.

"Judge Alito is in worse shape today than he was the day he was nominated, because some of these writings have come forward and I think they've hurt his cause," Schumer said in an interview.

"I want to hear what his answers are, what his explanations are," he added. "This is a process that is part science, part art. And you can't really judge it until the hearings occur."

Times staff writer Richard A. Serrano contributed to this report.

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(BEGIN TEXT OF INFOBOX)

Tuning in

The Senate hearings on Supreme Court nominee Samuel A. Alito Jr. begin at 9 a.m. PST today with opening statements. On subsequent days, the hearings will start at 6:30 a.m. PST.

Television: Live coverage will be carried on CNN, C-SPAN, Fox News, MSNBC and KCET HD. C-SPAN will rebroadcast the hearings in their entirety at 5 p.m. each day.

Radio: The hearings will be carried live on KPFK-FM (90.7) and C-SPAN Radio, and highlights will be on KCRW-FM (89.9) each evening from 6:30 to 7:30.

Online: Streaming video will be available at www.c-span.org and on www.kcet.org.

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