Alito Day 1: Of Kabuki Dances and Subtle Minuets

JURIST Guest Columnist Stephen Wermiel of American University Washington College of Law says that it is important to watch not only the posturing that began yesterday inside the hearing room for Judge Samuel Alito, but also to monitor the spin, polling and strategy that occurs outside...



The political ritual that Sen. Joseph Biden (D-Del.) has called "this Kabuki dance" began yesterday for the nomination of Judge Samuel Alito to the U.S. Supreme Court. And participants on both sides of the aisle quickly staked out so many positions, the hearing room in the Hart Senate Office Building could have resembled a land claims office during the California Gold Rush.

But the opening statements on the first day shed little light on what may be a critical question for the Alito nomination: whether there is one nomination process or two. There is no question that for the rest of this week, legal and political scrutiny will be focused on what takes place inside the hearing room — how Senators ask, and how Alito answers questions on a broad range of controversial and lightening rod topics.

It is also important to remember that there is a second, perhaps parallel track — how the nomination is playing outside the hearing room. Even before the hearings began yesterday, there was a flurry of activity outside the Senate's process. For example, the Washington Post reported yesterday morning the results of up-to-date polling showing that 53% believed Alito should be confirmed while 27% thought he should be rejected. Also before the hearings began, President Bush appeared at the White House after having breakfast with Alito to reaffirm his support and praise for the Supreme Court nominee. Ads from interest groups for and against Alito continued to air on television stations in states where Senators are considered pivotal. And during the course of the day, Alito was defended by conservatives at National Review Online, among other places, and treated skeptically at the liberal Alliance for Justice's Supreme Court Watch.

How important will this parallel hearing be — operating in the world of spin, polling data and voting strategy? The first day of the hearing did nothing to illuminate this question. To be sure, with the Senate controlled by a 55-vote Republican majority, it seems unlikely anything will occur at the hearing that will cause the nomination to be "spun" out of control. However, the possibility for a filibuster led by Democrats still hangs as a wild card over the hearing, making control of the image of the hearings and of public opinion potentially important.

It is possible to sit in the hearing room and have little or no sense of this parallel spin process that is swirling just beyond the doors. Listening to Alito's opening remarks, one could imagine that there was nothing controversial about the nomination. He did his best to sound like "everynominee," a kind of universal prototype for Supreme Court nominees: son of an immigrant family that worked their way out of poverty; childhood in an embracing, friendly New Jersey neighborhood that was not well-off; attended public schools but made it down the road to Princeton University; a believer in a role for judges that is agenda-free and considers each case on its merits.

Who could disagree with his statement that, "A judge can't have any agenda, a judge can't have any preferred outcome in any particular case. . .The judge's only obligation — and it's a solemn obligation — is to the rule of law."

Probably no one in the room disagreed, but there were certainly Senators who were skeptical about whether Alito really meant what he said or was simply posturing for purposes of the hearing. It is a process that Sen. Arlen Specter (R-PA) described yesterday in his own metaphor, observing, "It has been my experience that the hearings are really, in effect, a subtle minuet, with the nominee answering as many questions as he thinks necessary in order to be confirmed."

Kabuki dance or subtle minuet, the process begins in earnest today, and Senators made clear there are numerous issues and a range of different standards on the table. Republicans largely said that Alito should hold his ground and not be pressured to give detailed answers about controversial issues that may come before the Court. They attributed this approach to the way Justice Ruth Bader Ginsburg answered — or more to the point did not answer — questions in her 1993 hearing. But then there were some, like Sen. Tom Coburn (R-OK), who actually sounded like he wants detailed answers on abortion from his pro-life perch just as badly as Democrats may want insights from the pro-choice side. Republican Senators also made clear that Alito should not be held to some higher standard because he is replacing centrist swing-vote Justice Sandra Day O'Connor.

Democratic Senators raised a range of different issues and standards. Some made it seem that Alito bears a special burden for confirmation because of the nomination and then withdrawal of Harriet Miers, the White House counsel whose appointment was thwarted by conservative groups. The critics of Miers, said Sen. Patrick Leahy (D-VT), "demand judges who will guarantee the results that they want. And that's why the questions will be asked so specifically of you, Judge." Other Democrats, like Sen. Edward Kennedy (D-MA), questioned Alito's credibility and said he had a tough road to satisfy the concerns of liberals. Still other Senators made it clear that they will use the hearings to raise questions about the broad assertions of presidential power by President Bush in wiretapping citizens without court approval. Democrats asserted that Alito must talk about a broad range of legal issues because he has written what Specter described as 361 opinions and voted in 4800 cases as a judge on the U.S. Court of Appeals for the Third Circuit for 15 years. And not surprisingly, Democrats said the nomination to replace O'Connor creates an extra burden for Alito because he may shift the balance on the Court on a number of important issues.

All of these different and seemingly conflicting standards and subjects for inquiry may become much clearer as the questioning gets underway today and continues tomorrow. The parallel process outside the hearing room is much harder to track; the spinning, polling and strategizing do not take place under the magnification of the television cameras. But to really understand the Alito confirmation process, it is important to remember that there may be critical activity both within and outside the hearing room.


Stephen Wermiel is adjunct professor and Associate Director of the Marshall-Brennan Constitutional Literacy Project at American University Washington College of Law. His e-mail address is swermiel@wcl.american.edu
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