A Mostly Swimming Day for Alito

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Published January 11, 2006

| FoxNews.com

Supreme Court nominee Samuel Alito so far hasn't earned the outcry from opponents who are hoping to put him on the hook the way failed nominee Robert Bork was in 1987, but neither has the candidate gained the support of any senators sitting on the fence.

With no bombshells dropped through day two of the weeklong confirmation hearing, Democrats who voted against Chief Justice John Roberts in September appear equally dissatisfied with Alito, while Republicans so far seem ready to support the nominee.

And after a full day Tuesday of dismantling his opponents' loudest arguments against him, in the end, it was a Republican ally who threw the most unexpected curves, leaving Alito navigating some touchy issues that are likely to come before the high court.

"Can you show me an example in American jurisprudence where the question of status, whether a person was a lawful combatant or an unlawful combatant, was decided by a court and not the military?" asked Sen. Lindsey Graham, whose bombardment of questions often cut off Alito in mid-response.

"I can't think of an example," Alito said, looking flustered for the first time all day. "I can't say that I am able to survey the whole history of this issue, but I....”

"Can you show me in a case in American jurisprudence where an enemy prisoner held by our military was allowed to bring a lawsuit against our own military regarding their detention?" Graham asked.

"I am not aware of such a case," Alito said.

• Click here to watch gave-to-gavel, streaming live video of Day Two of the Senate Judiciary Committee on FOXNews.com.

The legal education seminar administered by the South Carolina senator, who is also a Reserve Judge to the Air Force Court of Criminal Appeals, seemed to take Alito by surprise. Up until the early evening grilling, Alito had been skillfully deflecting accusations from less friendly Senate Judiciary Committee members.

It remained to be seen if the uncomfortable exchange with Graham hurt his image as a scholarly, thoughtful jurist. Even so, Alito seemed to have successfully fended off the specter of failed Reagan nominee Robert Bork.

Confronted by Sen. Charles Schumer, D-N.Y., with a little-known 1988 interview in which he praised the hardline conservative as "one of the most outstanding nominees of this century," Alito calmly distanced himself from the conservative jurist.

"Senator, when I made that statement in 1988 I was an appointee in the Reagan administration and Judge Bork had been a nominee of the administration and I had been a supporter of the nomination. I do not think the statement goes beyond that. There are issues with respect to which I probably agree with Judge Bork and there are a number of issues with which I disagree with him," Alito said

Likewise, Alito offered a similar response earlier in the day when Sen. Herbert Kohl, D-Wis., trained on a similar line of questioning.

"Many Americans do not share Judge Bork's narrow views about the Constitution, views that would undermine many of the rights that we now take for granted, Judge Alito. Judge Bork thought that Americans had no constitutional right to use contraception ... Judge Bork thought minorities had no constitutional right to have their votes counted equally.

"Frankly, it's curious to me that someone like yourself would consider someone with his views to be, quote, 'one of the most outstanding nominees of this century,'" Kohl said.

To that, Alito proceeded to list several issues from which he varied from Bork on the conclusions.

"There are issues with respect to which I probably agree with Judge Bork and there are a number of issues with which — on which I disagree with him. Most of the things that you just mentioned are points on which I would disagree with him. I expressed my view about Griswold earlier this morning.

"On the issue of reapportionment, as I sit here today in 2006, and I think that's what is most relevant, I think that the principle of 'one person, one vote' is a fundamental part of our constitutional law. I think it would be — I do not see any reason why it should be reexamined. And I do not know that anybody is asking for that to be done," Alito said.

Alito also went on to say that under the Fourth Amendment, the decision in United States v. United States District Court, which led to the creation of the Foreign Intelligence Surveillance Act, was correct when it held that a warrant is required for domestic security surveillance.

The litany forced some backtracking by Kohl.

"Of course. I was only referring to — or trying to refer to your quote with respect to him and the positions he held, which I suggested were at variance with the positions I thought you held, which you're affirming here in your answer," Kohl said.

"The Democrats haven't really laid a glove on him. He's pretty much eliminated the character objections," said Roger Pilon, a former Reagan Justice and State official who now helms the CATO Institute's Center for Constitutional Studies. "He is saying enough to be informative but not enough to compromise his independence."

Even when it came to the tougher, more highly anticipated questions, such as one regarding a 1985 memorandum in which he wrote that the Constitution did not provide a basis for women's right to terminate pregnancy, Alito did not blink.

"That was a correct statement of what I thought in 1985 from my vantage point in 1985, and that was as a line attorney in the Department of Justice in the Reagan administration," Alito told panel Chairman Arlen Specter, R-Pa.

"I'm not saying that I made the statement simply because I was advocating the administration's position. But that was the position that I held at the time. And that was the position of the administration," he added.

In the run-up to the hearings, White House officials told reporters that at the time of the memo, in which he requested a promotion within the Justice Department, Alito was simply trying to prove his Reagan conservative credentials in order to get a job. But his blunt explanation on Tuesday closed an opening that might have allowed senators to portray him as a nerdy sycophant.

Thanks to Specter, a straightforward, pro-choice moderate, any whiff of suspense was done away within the first half hour of Tuesday's 10-hour Q&A session. That left the rest of the day to find creative answers to newly-angled but oft-repeated questions.

"Senator, I do agree that the Constitution protects a right to privacy. And it protects the right to privacy in a number of ways," Alito told Specter first thing, declaring his agreement with Griswold v. Connecticut, that 1965 case that established the right to privacy on which 1973's landmark Roe v. Wade abortion decision was based.

"The Fourth Amendment certainly speaks to the right of privacy. People have a right to privacy in their homes and in their papers and in their persons. And the standard for whether something is a search is whether there's an invasion of a right to privacy, a legitimate expectation of privacy," Alito said.

In outlining his beliefs, offered in response to more than 250 questions, Alito was also able to explain more fully two issues that dogged him in the nomination process: a potential conflict of interest case that the 3rd Circuit Court of Appeals, on which he serves, had to rehear; and his membership in a controversial Princeton University alumni group.

As many legal ethicists have already said, Alito did not have a financial stake in the outcome of the case involving the Vanguard Group, a company in which he owned mutual funds but no ownership interest. Alito had pledged during his federal judgeship confirmation hearing to stay off Vanguard cases for his initial time on the 3rd Circuit. He heard the Vanguard case in his 12th year of service.

"Well, there was an oversight. And the oversight was on my part in not focusing on the issue of recusal when I first received the case," Alito responded to questioning from Sen. Russ Feingold, D-Wis.

After being notified by party in the case of the possible conflict, Alito recused himself and ordered the case reheard by a new panel of judges. Its conclusion was identical to the one reached by the original panel on which Alito sat.

As for Alito's membership in the Concerned Alumni of Princeton, a group that was accused of being against affirmative action and co-education, the nominee stood by an earlier claim that he did not remember participating in the group. No evidence shows that Alito was actively involved with CAP, and there is no record he ever wrote for an incendiary journal published by the group.

FOX News legal analyst Judge Andrew Napolitano said not only are Democrats misrepresenting Alito, they are misrepresenting the CAP.

"It lobbied that as co-education flourished, the member of males would not be decreased. I have no recollection of Sam being a member of the organization or involved in any way and I was on the board for seven or eight years in the late '70s and early '80s," Napolitano said.

"The Democrats are painting CAP with a brush that it doesn't deserve. Its principle thirst in the late 70s and early 80s, in addition to maintaining the number of male undergraduates, was to make sure that ROTC stayed on campus. Sam and I were classmates. In our senior year, as members of ROTC, we had to leave Princeton and go to a state school because radicals at Princeton had firebombed the ROTC offices and rather than building little new offices, the university just let the military leave and stay off campus," Napolitano added.

Whether any of the details spell good news or bad for Alito's opponents is far from clear. The opposition to President Bush's pick to replace retiring Supreme Court Justice Sandra Day O'Connor is greater than any to a Supreme Court nominee since 1991, when Justice Clarence Thomas was confirmed in a squeaker of a vote.

Alito's answers to the Senate Judiciary Committee's questions on Tuesday were largely deliberate and measured. The 55-year-old appeals court judge dispelled early on any notions that he would be a shaky presence in front of the 18-senator panel.

"What he wasn't was as dazzling and charming and with this, you know, big-time personality that (Chief Justice John) Roberts has," said Weekly Standard Editor Fred Barnes, a FOX News contributor.

"He had to deal with a lot more cases and he did, he didn't duck," added Roll Call Executive Editor and FOX News contributor Mort Kondracke.

Of course, almost nothing that occurs during televised confirmation hearings comes close to being spontaneous, said Richard Davis, author of "Electing Justice: Fixing the Supreme Court Nomination Process."

"That has become the new touchstone — you can't get onto the Supreme Court without expressing support for the right of privacy," the Brigham Young University professor added. "If there's a super-duper precedent here, that is it."

Nor did it hurt that the Judiciary Committee members spent most of their allotted half hour speaking about issues that concern them, leaving less time for actual questions and answers.

"Not only is the president watching in a figurative sense and literal sense, so are the country, your constituents and interests groups," Davis said. "They're using [the hearings] to skewer each other."

As for the spectacle that was the Bork nomination, Davis said Alito and Chief Justice John Roberts before him had learned an important lesson: the much-hyped ideological battle over the judiciary is a nomination-killer.

"Interest groups want Alito to do what Bork did, and take on Kennedy and [California Democrat Dianne] Feinstein, but Republican senators and the White House know that is not how it works," Davis said. "You don’t do a head-on confrontation with these senators. You respond in vague statements, nod your head in response."

In fact, Democrats may find that is the only argument they have for rejecting Alito. Sen. Patrick Leahy, D-Vt., the ranking member on the panel, said in a statement after day two of the hearing that Alito needs to be more candid.

"Fresh in our memories and experience is the example of the testimony of Chief Justice Roberts, whose consistent answers helped build a record that gave many of us who voted for him the confidence in his candidacy that we needed to have. Judge Alito needs to do more than distance himself from his early, troubling writings and views – he needs to explain why his views are different today and that what he says is not simply the pledge of an eager applicant trying to win a job," Leahy said.

Davis also offered potentially disappointing news for red meat liberals.

"He wants to be a Supreme Court justice and he's been told how to do it. He's following the script, and is much closer to John Roberts than Robert Bork."

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