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Alito likely to face tough confirmation hearings

WASHINGTON — WASHINGTON -- Supreme Court nominee Samuel A. Alito Jr. doesn't have the preternatural poise of the judge who preceded him on the path toward Senate confirmation, John G. Roberts Jr.

Unlike Roberts, now the chief justice, Alito has a 15-year record as a federal appeals court judge that is giving supporters and opponents alike plenty to pick over.

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What Alito does share with Roberts, however, is a potentially decisive advantage in the confirmation game: Republicans control both the Senate Judiciary Committee - which begins considering Alito's nomination tomorrow - and the full Senate.

So while liberal interest groups have worked hard against Alito, the odds strongly favor President Bush's nominee.

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Still, Alito, 55, is expected to face a rougher reception than Roberts, who wowed senators with his intellect and deftly managed to avoid giving detailed answers to some of their most pressing questions, experts said.

The issue of abortion rights was a focal point of Roberts' hearings, but after Bush's admission last month that he authorized the National Security Agency to eavesdrop on U.S. citizens without a court order, this week's hearings are expected to delve more deeply into Alito's views on the limits of presidential power.

With congressional hearings on the NSA program expected within the next several weeks, several senators have said they're eager to draw Alito out on the issue, particularly since he is considered a proponent of strong executive powers.

"I still suspect Alito will be confirmed, but I do think that it will be a pretty bumpy hearing for him," said John Maltese, a University of Georgia political scientist and author of a book on the politicization of the Supreme Court nomination process.

Sen. John Cornyn, a Texas Republican and a member of the judiciary panel, said last week that it would be premature to count votes. But he sounded a note of confidence, though it is still possible that Democrats might try to use the parliamentary move known as a filibuster to stall the nomination or block it completely.

"I hear people talk about filibusters, but I expect Judge Alito to get an up-or-down vote, which means I don't expect there to be a filibuster," said Cornyn, who has been a staunch advocate for Bush's judicial nominees. "And I do expect him to be confirmed by a solid bipartisan majority of the Senate."

Every Republican and 22 Democrats voted to confirm Roberts last September. It isn't clear that Alito will get more than a handful of Democratic votes, but nearly all lawmakers have said they want to wait until the hearings are over to decide whether to support or oppose him.

Both parties are now working to hold their members together - especially moderate senators.

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So far, the bipartisan band of 14 senators who joined forces last year to stop Republican leaders from eliminating the filibuster have not been a factor. Most members of the so-called Gang of 14 have reserved the right to decide on their own after Alito's hearings are completed, however.

Interest groups that are opposed to Alito's confirmation are trying to draw attention to the philosophical differences between him and the justice he would replace, Sandra Day O'Connor, as a way to gain traction with moderates.

"John Roberts was an arch-conservative replacing an arch-conservative. This time, you've got an arch-conservative replacing Sandra Day O'Connor," said Ralph G. Neas, president of People for the American Way, a liberal group fighting Alito's nomination.

The issues raised by the debate over the NSA's domestic eavesdropping could have an impact on how lawmakers - and people outside Washington - view Alito, he said, since concerns about privacy and civil liberties tend to stretch across party lines.

"I think this is one of the issues that resonates and, when merged with other privacy issues, could become a very big deal," Neas said. "It's an issue that has tremendous traction within the Senate, which is where the votes are. Because this is a checks-and-balances issue."

The Republican chairman of the Judiciary Committee, Sen. Arlen Specter of Pennsylvania, sent Alito a letter asking whether he agreed with O'Connor, who wrote in a case decided in 2004 involving the administration's right to detain American citizens indefinitely, that "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

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Alito is also likely to face questions about his writings as a government lawyer. Among them is a 1984 memo defending the government's right to spy within the United States without warrants and suggesting that officials who authorized it should be granted immunity from prosecution.

In another memo, written in 1985, Alito offered a legal strategy to help undermine the landmark 1973 Roe v. Wade decision, a hallmark for abortion rights.

Those writings and others could leave Alito vulnerable, say some Democrats who are expected to oppose the nomination.

"I think there's a big hill to climb for this nominee," said Democratic Sen. Edward M. Kennedy of Massachusetts, who voted against confirming Roberts.

Republicans have worked to lower expectations for Alito, saying that it would be hard for him not to suffer in comparison with the polished and charming Roberts, who bantered easily with senators and came with a legal pedigree that included the late Chief Justice William H. Rehnquist as a mentor.

Alito's extensive writings, both as a judge and as a Justice Department lawyer, will make it difficult for him to dodge questions about issues on which he has written opinions, such as abortion.

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"There's just more of a paper trail, and I think some of it suggests that he may be more of an ideologue than Roberts - or at least, that he gives more of an appearance of being an ideologue than Roberts," said Maltese.

Bush chose Alito on Halloween after his first choice, White House counsel Harriet E. Miers, withdrew from consideration. Unlike Miers, Alito was immediately embraced by conservative Republicans, who welcomed a nominee with an extensive record as a judge.

They see Alito as exactly the type of person Bush promised to pick - a jurist in the mold of Antonin Scalia and Clarence Thomas, two of the most conservative judges on the court.

The American Bar Association, which traditionally evaluates federal court nominees based on their credentials, temperament, and performance, deemed Alito "well qualified," the group's highest rating, last week.

Liberal groups and some Democrats assailed the nomination from the beginning, pointing to Alito's opinions as a judge on the Philadelphia-based 3rd U.S. Circuit Court of Appeals as evidence that he would vote to erode rights that many Americans have come to take for granted, including abortion, access to the courts and voting rights.

They point to Alito's 1985 application for a job as deputy assistant attorney general, in which he wrote, "I am and always have been a conservative." In the application, Alito said that he was "particularly proud" of his contributions, while working as a government lawyer, to cases in which the Reagan administration argued that racial and ethnic quotas should be banned and that the Constitution does not protect the right to an abortion.

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White House officials have said that Alito's writings don't reflect how he might rule from the bench.

Conservative groups have countered criticism with a campaign in support of Alito, similar to those run for Roberts and many of Bush's other judicial nominees. Today, the Family Research Council will broadcast "Justice Sunday III" from a church in Philadelphia, to promote Alito and call for more conservative judges to join the nation's courts.

Lee Epstein, a professor of political science and law at Washington University, said that the ideology of a nominee is important to the confirmation process, but so are qualifications, which will work to Alito's advantage.

"I think it's very hard to challenge a nomination when somebody is perceived as extremely well-qualified," said Epstein, the co-author of a book about the politics of judicial nominations.

"I haven't heard anyone say, 'This guy's unqualified to be on the Supreme Court,' and I think that's hurt the left's case here."

gwyneth.shaw@baltsun.com


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