JURIST Guest Columnist Stephen Gilles of Quinnipiac University School of Law says that after a third day of Senate Judiciary Committee hearings, US Supreme Court nominee Judge Samuel Alito seems to be on his way towards confirmation given his performance thusfar, the current balance in the Senate and the fact that he's replacing Justice Sandra Day O'Connor…

Wednesday’s Alito hearings featured a second round of questioning by each of the Senate Judiciary Committee’s eighteen members. There were no big surprises.

The Democrats generally stuck to the themes they hammered away at on Tuesday: Judge Alito won’t pledge not to overrule Roe v Wade, favors an imperial President, tends to rule against the little guy and in favor of big business, broke a promise to the Judiciary Committee by failing to recuse himself in a pro se case in which Vanguard (a mutual fund he holds) was a party, and, when applying for a political job in the Reagan Justice Department in 1985, listed his membership in a “radical” organization called Concerned Alumni of Princeton (“CAP”). In response — sometimes with the help of friendly questioning from Republicans — Judge Alito continued to call Roe (and Casey) “precedent” but not “settled law,” distanced himself from sweeping versions of the unitary Executive, offered counterexamples in which he ruled for the little guy, explained that he could not possibly have had an improper motive in the penny-ante Vanguard case, and unequivocally condemned CAP’s opposition to women and minorities at Princeton. For their part, Republicans shot holes in some of the charges liberal interest groups have lodged against Judge Alito, reminded Democrats that many pro-life Senators voted for Ruth Bader Ginsburg even though everyone (correctly) suspected she would vote to uphold Roe, warned against litmus tests that could threaten judicial independence, castigated the politics of guilt by association, and invoked the overwhelming consensus among those who have worked with or appeared before Judge Alito that he is an open-minded, honest, and impartial jurist of the highest caliber.

By the end of another long, long, day, even Democratic Senators Leahy and Feinstein were complimenting Alito on his “equanimity.” And while the Democrats persuaded Chairman Arlen Specter to schedule a third and shorter round of questioning Thursday, there don’t seem to be any fireworks in the offing. Senator Kennedy, after a testy exchange with Specter on the subject, appears to be holding out hope that a fishing expedition into the records of National Review publisher William Rusher (one of CAP’s founders) will inextricably entangle Judge Alito with CAP’s Neanderthal positions on admissions at Princeton. But the possibility that this particular “missing link” ever existed (let alone that it is conveniently fossilized in CAP’s archives) seems far-fetched.

On balance, Judge Alito’s performance so far has clearly helped his chances. By the same token, however, Alito’s chances have clearly helped his performance. The President’s party controls the Senate 55-45 — and, as a look at the confirmation hearings of the past three decades confirms, the composition of the Senate makes an enormous difference. When the President’s party controls the Senate, a reliably conservative (or reliably liberal) nominee is readily confirmable: consider President Reagan’s nomination of Justice Scalia, President Clinton’s nominations of Justice Ginsburg and Justice Breyer, and President Bush’s nomination of Chief Justice Roberts. By contrast, when the President’s party does not control the Senate, a reliably conservative nominee will face major problems. (So, presumably, would a reliably liberal nominee if the tables were turned). In 1986, not long after Scalia was easily confirmed, the Democrats retook control of the Senate by 54-46. In 1987, they famously defeated the nomination of the highly conservative Robert Bork. The seat eventually went to Justice Kennedy — like Justice O’Connor, a “moderate” conservative. In 1991, with the Democrats in control 56-44, the staunchly conservative Clarence Thomas was barely confirmed (52-48). Were he not African-America, his nomination might well have been defeated. The reliably liberal Justice Souter (easily confirmed by a Democratic Senate) was a mistake — but it is widely believed that the first President Bush made that mistake in the belief that Souter was a stealth conservative. An evident conservative would have been too risky. The current Court’s fourth reliable liberal — Justice Stevens — was arguably not a mistake. A weak Republican President (Gerald Ford) nominated Stevens in the face of a post-Watergate Senate with 60 Democratic Senators.

Of course, the composition of the Senate is not the only relevant variable. The President’s popularity or unpopularity matters: Reagan was badly weakened by Iran-Contra when he nominated Judge Bork. So does the perceived gap between the ideological valence of the nominee and the Justice he or she is replacing. As Senator Biden put it on Tuesday, “Roberts for Rehnquist, you know, what's the worst that can happen”? By contrast, Biden warned Alito, he would face higher scrutiny because “You are replacing someone who has been the fulcrum on an otherwise evenly divided court.”

In fact, if Justice O’Connor really was “the fulcrum on an otherwise evenly divided court,” the Democrats would be fighting even harder than they already are to defeat Alito’s nomination. Contrary to Biden’s spin, the existing lineup tilts the Court subtly but decisively to the left. For the past decade, the Supreme Court has consisted of four reliable liberals (Justices Stevens, Souter, Ginsburg, and Breyer), two moderates (Justices O’Connor and Kennedy), and three reliable conservatives (Justices Scalia and Thomas and Chief Justice Rehnquist). When it comes to the divisive culture-war issues of constitutional law, where voting tends be most polarized, this pseudo-“balance” means that liberals have enjoyed a huge advantage: they have needed only to persuade one of the moderates, whereas the conservatives have needed to persuade both. That, in a nutshell, is why conservatives have been the losers in so many of the blockbuster cases of recent years.

Nevertheless, Senator Biden and his colleagues are absolutely correct that Judge Alito could move the Court significantly to the right. If Alito is confirmed — and if he and Chief Justice Roberts prove to be reliable conservatives, as seems likely — Justice Kennedy will indeed be the “fulcrum” for an otherwise equally divided Court. As the Democrats well know, that still leaves five votes to preserve Roe: Kennedy (who co-authored the joint opinion in Casey), Stevens, Souter, Ginsburg, and Breyer. On several other hot-button issues, however — including affirmative action, campaign finance, and partial-birth abortion — it was Justice O’Connor who provided the necessary fifth vote for a liberal victory. No wonder the question “how much respect is due to precedent in constitutional law?” has figured so prominently in these hearings. Given the balance of power in the Senate, Judge Alito is unlikely to say more than he already has: if asked to overturn a precedent, he would first consider the issue of stare decisis, and “if [he] got beyond that,” he would approach the underlying constitutional question with an open mind.

Stephen G. Gilles, Professor of Law at Quinnipiac University School of Law in Hamden, Conne
cticut, clerked for Judge Robert Bork in 1984-85 and for Justice Sandra Day O’Connor in 1985-86.
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