WASHINGTON – Democratic Sen. Dick Durbin of Illinois is one of the senators who might be expected to be aligned against the nomination of U.S. Supreme Court nominee Samuel Alito (search).
But Durbin said Wednesday he's still undecided about the candidate, and he seemed satisfied with Alito's take on whether the U.S. Constitution (search) contains an implied right to privacy.
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"Although he didn't go quite as far as (Chief Justice) John Roberts did in his hearing, he satisfied me that he recognized this to be one of the unenumerated rights in the Constitution, this basic right of privacy. And he led me to believe that he felt that it was an established right," Durbin said Wednesday after Alito visited with him during the nominee's third day of meetings and photo-ops with lawmakers since President Bush's nomination on Monday.
The issue is key for many senators who support abortion rights since the high court's right to privacy decision in Griswold v. Connecticut (search) is the underpinning for Roe v. Wade (search), the landmark 1973 abortion rights law.
Some Democratic supporters have suggested that by filling the swing vote of retiring Justice Sandra Day O'Connor (search), Alito, 55, would turn his back on abortion rights and undermine the court's prior decisions. The conclusion comes in part from Alito's sole dissent in 1991's Planned Parenthood v. Casey (search), in which the 3rd Circuit Court struck down a Pennsylvania law that required women seeking abortions to notify their spouses.
To the surprise of some, Durbin, who said the 15-year Circuit Court judge was more forthcoming during their meeting than either Roberts or withdrawn nominee Harriet Miers, seemed to come to his defense.
Alito "spent more time worrying over it and working on that dissent than any he had written as a judge," Durbin said.
As it turns out, a majority of Americans agreed with Alito's dissent. According to a 2003 Gallup poll, 72 percent of Americans supported the law requiring the husband of a married woman to be notified if she decides to have an abortion while 26 percent opposed it. Nearly identical polls were conducted in 1996 and 1992, in which Democrats surveyed supported the provision by a two to one margin.
Republicans also seem to admire Alito's jurisprudence. While visiting Republican senators on Capitol Hill Wednesday, the nominee met with Republican Sens. Mitch McConnell of Kentucky and Chuck Hagel of Nebraska, who both expressed their satisfaction with the candidate.
Republican Sen. Kay Bailey Hutchison of Texas said she too was pre-disposed to vote for him.
"Barring something that is not apparent, I certainly am favorable," Hutchison said.
Great interest has focused on what Hagel's Democratic counterpart from Nebraska would say after his meeting with Alito. Sen. Ben Nelson is a member of the "Gang of 14," the bipartisan group of moderate senators who have so far defused talk of filibusters and the so-called "nuclear option" that would prevent Democrats from using the procedural move to stall the nomination.
Talk of the filibuster option has not yet been uttered by Democrats, but already two Republican members of the Gang of 14 say if it comes to it, they will bail out of the gang and vote for the nuclear option.
"People like Lindsey Graham and I, who were part of that group, I think you can bet we'll be willing to vote to change the rules of the Senate so that we do not have a filibuster," Ohio Republican Sen. DeWine said hours after Alito's nomination was announced.
The gang's current structure is important because without seven members from each side willing to split from their party's positions, either side could achieve its objectives.
Republicans hold 55 seats in the Senate, and while confirmation requires a simple majority, it takes 60 votes to break a filibuster. Democrats, with 45 votes counting Independent Sen. Jim Jeffords, need 40 votes in order to hold up a filibuster.
Democrats can't get to 40 votes if seven Democrats remain in the Gang of 14. For Republicans to eliminate the filibuster, they too would need two Republicans to split from the gang. That would bring the Republican vote back to 50, and with the tie-breaking vote of Vice President Dick Cheney, Alito would be confirmed with majority support.
The Gang of 14 will meet on Thursday and Democratic members plan to urge their Republican colleagues at the meeting to withhold any decision to bolt from the gang, since Alito's nomination is not even officially at the Senate yet.
"The truth of the matter is that it's way too early to talk about extraordinary circumstances," Nelson said. "I'm not hearing any of my colleagues talk about it, and I'd rather not hear any of my colleagues on the other side talk about it as well."
Nelson added that he is reserving judgment on Alito, but seemed pleased with the nominee's promises of impartiality.
"He assured me that he wants to go to the bench without a political agenda, that he is not bringing a hammer and chisel to hammer away and chisel away on existing law, that he wants to decide each case as it comes before him," Nelson said.
The ranking Democrat on the Senate Judiciary Committee, Patrick Leahy of Vermont, was absolutely unwilling to characterize in any way his meeting with Judge Alito, though he continued to criticize the president for bowing to pressure from the right when he accepted Miers' withdrawal.
Leahy is currently engaged in negotiations over when the hearing might begins, and by his comments suggested that he is interested in trying to slow down the process.
"It's far more important to do it right that to do it fast," Leahy said.
But Senate Majority Leader Bill Frist, still licking his wounds over a "slap in the face" on Tuesday when Democrats unexpectedly forced the Senate to go into closed session to debate pre-Iraq war intelligence, said he wants everything wrapped up by Christmas.
"If they use procedural tactics there as well like this little stunt they did yesterday, they're going to pay a price before the American people," Frist, R-Tenn., said Wednesday. "To take a man of such quality who has demonstrated that over a long period of time is absolutely wrong. He deserves a fair up or down vote."
Some Democrats have suggested privately that the nomination should be dragged out until February. That probably won't happen. The best guidance from legislative aides is that the confirmation hearing will be held in the first week of January and a vote on the Senate floor will come sometime near the president's State of the Union address near the end of the month.
The Associated Press contributed to this report.