WHO SAYS YOU DON’T LEARN much from judicial confirmation hearings? We learned an awful lot about Sen. Joseph R. Biden Jr. (D-Del.) last week. He was among the senators who seemed to use more of their time lecturing instead of listening to the Supreme Court nominee, Judge Samuel A. Alito Jr.
Alito emerged from the hearing mostly unscathed. He played his role, at least during those brief moments when senators were catching their breath, well. He was the humble, earnest judge focused on applying the law to the facts on hand. That so much time was spent on such distractions as the infamous Princeton alumni group in which Alito was marginally involved is indicative of the failure of the Democrats on the Senate Judiciary Committee to gain traction with any of their more legitimate concerns about the judge.
We also have serious qualms about Alito’s judicial philosophy and worldview, though it was good to see him step back slightly from his overly expansive understanding of presidential power. Alito called some of the language he had used on the subject in the past “inapt.” In discussing the landmark case holding President Truman’s seizure of some steel mills during the Korean War unconstitutional, Alito agreed that presidential authority is severely constrained when he acts against the expressed will of Congress. That is the context in which President Bush has allowed the National Security Agency to eavesdrop, without any court warrant, on phone calls in the United States.
On the issue of abortion rights, Alito seemed to feel less need to reassure his opponents. There was plenty of lip service to the importance of “settled law,” but it was easily inferred from the judge’s evasiveness that he does not consider Roe vs. Wade to be as settled as other landmark Supreme Court precedents. Alito, whose intelligence and qualifications are unimpeachable, does seem temperamentally conservative, which suggests he may not have an overarching, crusading agenda for the court.
Alito would not have been our choice to replace Sandra Day O’Connor on the court. It is understandable that, unlike now-Chief Justice John G. Roberts Jr., he may not win many Democratic votes. Conversely, there are no legitimate grounds to entertain a filibuster of this nominee, or to be overly shocked that he is the sort of justice Bush would select.
Bush never made any secret of his desire to put conservative jurists on the highest court, and he was elected to the presidency twice. One of the perks of the presidency, besides not having to sit through confirmation hearings, is shaping the Supreme Court. And one of the obligations of senators in the minority, after forcing a nominee to listen to them, is allowing the president’s nominee an up-or-down vote.