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Senators Seize on Hearing as Sounding Board

Times Staff Writer

With typical Midwestern bluntness, Sen. Charles E. Grassley seemed to say it all when he summed up the state of play on Day 3 of the Senate committee hearing on the nomination of Judge Samuel A. Alito Jr. to the Supreme Court.

“We’ve gone over the same ground many times,” the Iowa Republican said. “The horse is dead. Quit beating it.”

Since Alito first sat down in front of the Senate Judiciary Committee on Monday, it has become clear that the process is as much about the senators and their own agendas as it is about the nominee. Several lawmakers have spent more time delivering their own stemwinders than they have asking questions of Alito. Nary a mind appears to have been changed.

The result has been a hearing regarded by many Capitol Hill veterans of past confirmation battles as one of the most colorless in modern memory. (“It’s like the first half of ‘The Wizard of Oz,’ ” one Democratic staff member said.)

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Democrats tried to step up the drama Wednesday with more confrontational questioning, but the room remained heavy with a sense of inevitability.

The hearing “really isn’t a forum for senators making up their minds as it is for advertising their views and trying to expose Alito’s,” said Elliot E. Slotnick, an expert on judicial nominations at Ohio State University.

Although Democrats largely have failed to fluster the nominee, let alone derail his confirmation, they have tried to use the hearing to depict him as an ideologue who probably would tip the balance of the Supreme Court sharply to the right.

Republicans have used their time before the television cameras to counter the Democrats’ criticism, lob softball questions and shower Alito with praise.

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Lacking were the fireworks that marked the confirmation hearings of two previous Supreme Court nominees: Robert H. Bork, whose 1987 nomination was rejected after he constantly haggled with Democratic senators over his conservative views, and Clarence Thomas, who in 1991 overcame bombshell accusations of sexual harassment to win a high-court seat.

Even without fireworks, a high-profile hearing such as this one -- held before a sea of cameras -- is hog heaven for publicity-conscious senators. Rare is the legislator who passes up the chance to question the nominee on national television, even if the question has already been asked.

“Since the politicians seem to have made up their mind, and the rest of this is simply playing out, I suspect that if there weren’t TV cameras, this part of the hearing would be over by now,” said Sen. Jon Kyl (R-Ariz.).

Sen. Joseph R. Biden Jr. (D-Del.), who is thinking about running for president in 2008, found a sure-fire gimmick to get the cameras turned on him. Discussing a controversial Princeton University alumni group of which Alito was once a member, Biden clapped on a Princeton baseball cap. Every camera in the room swung to him, and the sound of shutters clicking was deafening.

Sen. Charles E. Schumer (D-N.Y.) also understood the value of props in a hearing as dry and legalistic as this one. He pulled out and waved a pocket-sized copy of the Constitution. Again, cameras clicked.

Republicans had props of their own. Responding to Democrats’ claim that Alito was being evasive and refusing to answer key questions, Kyl displayed a poster with quotes from the day’s newspaper articles describing him as a forthcoming witness.

For his part, the nominee sat patiently at the witness table Wednesday morning, having already endured 7 1/2 hours of questioning. “I admire the stamina both of the nominee and his family,” who sat behind him throughout the proceedings, said Sen. Patrick J. Leahy of Vermont, the committee’s top Democrat.

Many issues were revisited as Democrats returned to the dais battered by overnight criticism from liberal activists that they were going too easy on Alito.

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“They forgot that part of their role is to educate the American people” about Alito’s record, said one activist who asked not to be identified while criticizing Democratic senators. “Some of them didn’t go the additional step of thinking about how to reach other Americans whose minds haven’t been made up.”

Taking a more confrontational tack Wednesday, Sen. Edward M. Kennedy (D-Mass.) demanded a committee subpoena to obtain documents about the Concerned Alumni of Princeton, a conservative group that had opposed affirmative action and admission of women at the university.

When Kennedy proposed a closed-door meeting to vote on the subpoena, Sen. Arlen Specter (R-Pa.), the committee chairman, snapped at the challenge to his power to call the shots. “I’m not going to have you run this committee,” he said with a crack of the gavel.

That was just one of several instances in which Senate power-brokers clashed over the chamber’s internal rituals, leaving the nominee -- the reason for the hearing -- a mere bystander.

At one point, Sen. Tom Coburn (R-Okla.) broke an unwritten Senate rule by criticizing a colleague when he was not present to respond: He pointed out that Sen. Richard J. Durbin (D-Ill.) had switched his position on abortion many years ago, and so was poorly positioned to criticize Alito for recanting past statements. Durbin later wanted to respond and explain his switch on the issue, but insisted on waiting until Coburn was in the room to do so.

After Democrats spent the day trying to portray Alito as evasive, a friend of corporations, a foe of abortion rights and a potential rubber stamp for presidential power, even they admitted that it was a tough message to get across in simple terms.

“That’s a problem with this battle,” said Jim Manley, spokesman for Senate Minority Leader Harry Reid (D-Nev.). “These are serious issues that go to the core of what this country is all about. Sometimes it’s tough to put it on a bumper sticker.”

Times staff writer Richard Simon contributed to this report.

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