Published January 10, 2006
WASHINGTON – If early assessments are any guide, Samuel Alito will have a difficult time Tuesday convincing Senate Judiciary Committee Democrats to take his word that he will follow the rule of law as a Supreme Court justice.
"Every nominee has used the same empty platitude, they will follow the rule of law as a judge. But even as a circuit court judge, Alito has frequently bent or ignored precedent to move in an ideological direction and will have far more freedom to do so on the Supreme Court," Sen. Charles Schumer, D-N.Y., said in a statement after the first day of the nominee's confirmation hearing to the high court.
In his opening statement to the panel on Monday, Alito told senators that he would respect the rule of law and not be an activist judge.
Watch gavel-to-gavel, streaming live video of day two of the Senate Judiciary Committee hearing on FOXNews.com, beginning at 9:30 a.m. EST Tuesday.
"There is nothing more important for our republic than the rule of law," Alito said. "No person, no matter how high or powerful, is above the law and no person in this country is beneath the law."
Alito added that his role as an attorney for the Reagan Justice Department and his position as a judge on the 3rd Circuit Court of Appeals dictated distinct and opposite behaviors, one that he would continue to observe if appointed to the court.
"The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge can't think that way. A judge can't have any agenda, a judge can't have any preferred outcome in any particular case, and a judge certainly doesn't have a client ... the judge's sole obligation is to the rule of law," Alito said during the 11 minutes of remarks delivered without notes.
Before Alito could make any remarks, however, several Democrats expressed grave misgivings about the judge's ability to be impartial.
"We now have the record of Judge Alito's 15 years on the bench and the benefit of some of his earlier writings that were not available 15 years ago. And I regret to say that the record troubles me deeply," said Sen. Ted Kennedy, D-Mass.
"I'm gravely concerned by Judge Alito's clear record of support for vast, presidential authority, unchecked by the other two branches of government in decision after decision. On the bench, he has excused abusive actions by the authorities that intrude on the personal privacy and freedoms of average Americans," Kennedy said.
Schumer said that while every nominee who aspires to become a Supreme Court justice bears a heavy burden of proving their worthiness, Alito's burden is "triply high."
"First, because you've been named to replace Sandra Day O'Connor, the pivotal swing vote on a divided court; second, because you seem to have been picked to placate the extreme right wing after the hasty withdrawal of Harriet Miers; and, finally, and most importantly, because your record of opinions and statements on a number of critical constitutional questions seems quite extreme," Schumer said during the hearing.
That starting point from which Democrats appeared ready to judge Alito didn't please Republicans, who questioned why the standard is higher on this nominee than others.
"A number of the opening statements by the Democrats sounded more about indictments than about than about opening statements," Sen. Arlen Specter, R-Pa., chairman of the committee, said after the panel broke for the day.
"Beyond the statement that this nominee is somehow subject to a triply high burden, what I worry about is the double standard. And that is it appears that this nominee is going to be asked to cross a line that no other nominee has been asked to cross before, and one that has become known as the Ginsburg standard," said Sen. John Cornyn, R-Texas, in a press conference.
The Ginsburg standard is a tool used by nominees and seemingly accepted by lawmakers to excuse the candidates from answering questions. Named after Justice Ruth Bader Ginsburg, who during her 1993 nomination declined to answer questions that may come before her on the bench, Ginsburg's logic was accepted by lawmakers and she was confirmed on a 96-3 vote.
"I hope this nominee will not be held to a double standard. I hope he will not be held to a triply high burden, as was said here today, but that he's given a fair opportunity to present his views and that the many decisions he's participated in as a judge over the last 15 years are not misrepresented," Cornyn said.
Schumer argued that on issues such as abortion, which Alito has written about in the past, he cannot employ the so-called Ginsburg rule. He and Sen. Dick Durbin, D-Ill., added that the growing importance of the court to adjudicate on executive powers adds to Alito's "burden."
"If, tomorrow, we find our questions not being answered, if there's evasion, then I'm afraid that that burden will not be met," Durbin said. "He has gone, I'm afraid, to a marginal position when it comes to the power of the executive. We have to know if this is going to guide him if he is on the Supreme Court."
But Sen. Lindsey Graham, R-S.C., said Alito shouldn't feel pressured to make his answers fit a script because he will find himself in an impossible situation of trying to please everyone and satisfying no one.
"[Democrats] are talking about filibustering maybe if you don't give the right answer. Well, what could possibly be the right answer about Roe v. Wade? If you acknowledge it's a precedent the court, well, then you would be right. If you refused to listen to someone who's trying to change the way it's applied or to overturn it and you will say, 'Here, I will never listen to them,' you might talk me out of voting for you. I don't think any American should lose the right to challenge any precedent that the Supreme Court has issued because the judge wanted to get on the court," Graham said.
He added that Alito should not be defined by Democrats as to whether he is a "mainstream conservative" or not.
"The question is: Are you a mainstream conservative? Well, the question I have for my colleagues is: Who would you ask to find out? Would you ask Senator Kennedy? Probably not. If you asked me who a mainstream liberal is, I would be the worst person to pick, because I do not hang out over there," Graham said.
Former New Jersey Gov. Christine Todd Whitman, who introduced one of her state's native sons, said from her own experience, she learned that Alito is an individual jurist unpressured by the executive branch and someone who would be defined as mainstream.
"He, in fact, was one of three judges who made a decision upholding a conditional veto of mine on an issue of partial-birth abortion. That was a decision that I have to believe personally would have been one that if it was a case or a law, he would have liked to have upheld, he would have liked to have seen it on the books ... but it's where he showed a clear understanding that the role of the judiciary is to judge on the facts before them, and he set aside his personal opinion to look at those facts and determined -- as my attorney general has and as I had -- that that law as written was unconstitutional," said Whitman, a moderate Republican who frequently clashed with the Bush administration during her term as Environmental Protection Agency administrator.
"I don't believe you can ask more of a justice than that," she added.
In his opening remarks, Alito tried to show that he doesn't lean one way or the other as his critics inside and out of the legislature have suggested.
"No person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law. Fifteen years ago, when I was sworn in as a judge of the court of appeals, I took an oath. I put my hand on the Bible and I swore that I would administer justice without respect to persons, that I would do equal right to the poor and to the rich, and that I would carry out my duties under the Constitution and the laws of the United States," he said.
More Rigorous Testimony to Come
Alito has extensive experience as a government lawyer, prosecutor and judge. In 15 years as a judge on the 3rd Circuit Court of Appeals, he has voted 4,800 times in cases and written 361 opinions. Likely to be argued back and forth is whether Alito's record makes him a known or unknown quantity, and if known, then disliked by some.
During the hearing, Schumer said that because of blanket statements Alito has made about the Constitution and Roe v. Wade, he has already made his biases known. On Tuesday, Schumer and the other 17 members of the panel -- 10 Republicans and eight Democrats -- each will have 30 minutes to question Alito about whether their impressions are true.
As in the past, however, much of the time will likely be used in formulating the question than in Alito offering an answer. And among the ponderings of lawmakers is sure to be a lot of discussion on the Senate's role in approving the president's nominees and the future direction of the federal courts, especially since Alito is replacing swing-voting Justice Sandra Day O'Connor.
"We all act like there's not an elephant in the room," said Sen. Joseph Biden, D-Del. "The truth of the matter is, there's significant debate among judicial scholars today about whether we've gone off the wrong path in regard to judicial decisions."
Republican Sen. Charles Grassley of Iowa bashed interest groups who he says are twisting and distorting issues and cherry-picking certain decisions to characterize Alito's judicial philosophy and its presumptive impact on the court.
"What the opposition tends to be portraying [is] as if this is some political campaign. A lot of the questions and the issues that have come up would really be more appropriate for a congressional campaign than they are for the United States Senate to be making a decision in support of confirming a judge," Grassley said.
Graham said he is more concerned with not turning the advice and consent role of the Senate into a political circus that diminishes the value of the judiciary.
"Every senator will have to live within themselves as to what they would like to see happen for the judiciary. My main concern here is not about you; it's about us. What are we going to be doing as a body to the judiciary when it is all said and done? ... What I want from the judge is an understanding that precedent matters but the facts, the brief and the law is what you're going to base your decision on as to whether or not that precedent stands, not some bargain to get on the court," he said.
Attempting to defend Alito, Sen. Sam Brownback, R-Kan., suggested Alito was a known quantity that should be acceptable to the majority of senators.
"One thing that a number of people have said if he doesn't answer the questions, we can't vote for him -- when, in fact, this is the nominee that we know the most about his judicial philosophy of anybody nominated arguably for the last 70 years. ... To say that we don't know the position of this nominee is a falsehood," Brownback said.
"Second, I want to just briefly say this. The idea that there are spots on the Supreme Court reserved for certain ideologies is a falsehood and a creation of recent environment. We have not reserved positions on the Supreme Court for certain ideologies, whether it be right, left or middle," he added.
Alito's opening statement came after he sat stoically for almost four hours listening to members summarize his views for him. The rest of the days of the hearing, which are scheduled to last throughout the week, will give Alito much more time to define himself.
Political observers say Alito's first day before the committee went as expected, and unless he says something completely off the wall, he will probably succeed in winning confirmation.
"I think Alito said what you would hope a fair-minded judge would say," said Roll Call Executive Editor and FOX News contributor Mort Kondracke. "He doesn't sound like an activist to me going into this, conservative yes, activist no."
"I think for him to kind of live up to the expectations or the picture of him that has been painted by his opponents he would have to say something or do something in these hearings to add to that... He presented himself very well in his maiden appearance," said National Public Radio correspondent and FOX News contributor Mara Liasson.
FOXNews.com's Liza Porteus contributed to this report.