Democrats Cast Wide Net Seeking Alito Flaw

Times Staff Writer

Democrats resembled a guerrilla army searching for a weak point in a heavily guarded fortress Tuesday as they challenged Supreme Court nominee Samuel A. Alito Jr. at his Senate Judiciary Committee confirmation hearing.

The array of issues Democrats raised reflected the breadth of their concerns about the record of Alito, President Bush’s choice to succeed retiring Justice Sandra Day O’Connor. But the broad nature of their critique also underscored the party’s difficulty at coalescing around a single, clear argument against Alito’s nomination.

The long day of testimony did not produce a dramatic or emotional confrontation that flustered Alito, a judge on the U.S. 3rd Circuit Court of Appeals. But the persistent and sometimes relentless questioning from Democrats signaled that the party might mount a more forceful resistance to his nomination than it did to Bush’s choice last year of John G. Roberts Jr. as chief justice.

With Republicans holding 55 Senate seats, Alito remains a strong favorite to succeed O’Connor. But based on the sometimes contentious back-and-forth between Alito and Democrats on Tuesday, the process may not be as smooth or predictable as it was for Roberts, who won confirmation from the full Senate with a commanding 78-22 vote.


“With Roberts, there was an air of inevitability from the very beginning,” said Nan Aron, president of the Alliance for Justice, a liberal coalition opposing Alito. “This situation is completely different.”

As Democrats repeatedly confronted Alito -- and Republicans defended him -- the hearing covered issues as varied as executive power, abortion, reapportionment and the nominee’s ethics.

Because Alito has served as a federal appellate judge for 15 years, the questioning focused more on his specific decisions than on the intangible issues of judicial philosophy that consumed much of the hearing for Roberts, who had served about two years as a federal judge before his nomination.

“It makes it a different kind of hearing, because he’s got 15 years for everybody to see,” said Wendy Long, general counsel for the Judicial Confirmation Network, a conservative group supporting Alito. “He is somebody who is a known quantity to everybody.”


Alito was contained and controlled through the long hearing Tuesday, never seeming to anger and only rarely displaying flashes of humor. He demonstrated an encyclopedic knowledge of the cases he had decided on the 3rd Circuit, fielding detailed questions on dozens of them without referring to notes.

For decades, social issues such as abortion have provided most of the fuel for the battles over the Supreme Court’s makeup. At Tuesday’s hearing, though, the war on terrorism eclipsed the culture war.

Amid the controversy over Bush’s authorization of National Security Agency wiretapping without warrants, Democrats devoted much of their energy to charging that Alito’s deference to law enforcement and executive branch authority would erode Americans’ civil liberties.

Drawing on views Alito expressed as an attorney in the Justice Department under President Reagan and later as a judge, Sen. Edward M. Kennedy (D-Mass.) said: “Your record shows time and again that you have been overly deferential to executive power, whether exercised by the president, the attorney general or law enforcement officials.”


Alito countered that he also had ruled in ways that constrained law enforcement powers and that he would hold the president, like any other American, accountable under the law.

“Our Constitution applies in times of peace and in times of war,” Alito said.

Although the emphasis on civil liberties overshadowed discussions of abortion, one senior Democratic political operative -- who spoke on the condition of anonymity when discussing party strategy -- said Senate Democrats might try to braid the two issues together to depict Alito as a threat to Americans’ individual liberty and privacy. That was the argument a coalition of groups opposing Alito unveiled in a television ad released last week.

Alito supporters said they were confident such arguments would not reduce public support for the nomination and might even backfire.


“If the left wants to argue that the president needs to be weaker when it comes to protecting this country from terrorist cells, I think that’s the kind of debate where we probably won’t have to say a whole lot to undercut their argument,” said Sean Rushton, executive director of the Committee for Justice, which supports Bush’s judicial nominees.

In another of the hearing’s central themes, Alito repeatedly sought to drop an iron curtain between the staunchly conservative opinions he expressed as a Justice Department lawyer and the direction he would chart if confirmed for the high court.

Alito said he would approach with an “open mind” issues on which he had previously expressed clear positions, such as his conclusion that the Supreme Court had wrongly decided Roe vs. Wade, the 1973 case guaranteeing the legal right to abortion nationwide.

“When someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues,” Alito said.


Kennedy, in his exchanges with Alito over executive power, countered that his judicial decisions followed the “larger pattern” of his writings and speeches before he joined the courts.

Two new national surveys found that about half of Americans backed Alito’s confirmation. In a CNN/USA Today/Gallup survey released Monday, 49% said they supported his confirmation, 30% said they opposed it and 21% were uncertain; an ABC/Washington Post survey released Monday recorded similar results.

In both surveys, Alito’s support was slightly lower than the level recorded for Roberts as his hearings began in September.

Operatives on both sides generally agree that, absent some significant revelation or development at the confirmation hearings, three of the 55 Senate Republicans might consider voting against Alito: Lincoln Chafee of Rhode Island, and Olympia J. Snowe and Susan Collins of Maine.


With Alito virtually assured of winning a Senate majority, stopping the nomination would probably require a Democratic filibuster. In turn, that maneuver would probably revive an effort by Senate Republicans to ban use of the filibuster for judicial nominations.

At this point, the odds are against the Democrats attempting a filibuster, partly because too many of their senators from “red” states where Bush is strongest would likely resist such an effort. Sustaining a filibuster would require 41 Senate votes; Democrats hold 44 Senate seats and usually receive support from independent Sen. James M. Jeffords of Vermont.

One sign of difficulty for Democrats hoping to block Alito came late Tuesday when David DiMartino, the spokesman for Sen. Ben Nelson (D-Neb.), said the lawmaker had heard nothing that “seems to be near a disqualifying issue” for the nominee through the first day of hearings.

Yet prominent Democrats, such as Sen. Charles E. Schumer (D-N.Y.), haven’t foreclosed a filibuster attempt. Although the Democratic enthusiasm for resisting Roberts palpably waned after the first day of questioning, Alito’s long record seemed to provide plenty of fuel for a sustained argument through the rest of the Judiciary Committee’s hearings -- and into the full Senate’s debate on him.