After a five-day hearing on whether Samuel Alito should be the 110th justice on the Supreme Court, Senate Judiciary Committee Chairman Arlen Specter said he will vote in favor of sending the nomination to the Senate floor.
"I intend to vote to support Judge Alito for associate justice of the Supreme Court and I do not do that as having a party line vote," said the Republican from Pennsylvania. "If I thought Judge Alito should not be on the Supreme Court, I would vote 'no,' just as I did with Judge [Robert] Bork."
Despite Specter stressing the importance of giving Alito an up-or-down vote and making sure the nomination is sent to the full Senate for consideration, Democrats may try to delay the committee vote.
"A number of our members are going to be home for Martin Luther King events this weekend, will not be back on time on Tuesday and so they will exercise their rights" to delay the vote, said the committee's ranking Democrat, Sen. Patrick Leahy of Vermont.
But Specter said he wants to stick to the schedule and have the committee vote Tuesday and the full Senate vote the following Friday.
"We [Leahy and Specter] have each other on speed dial at home … we'll talk about this over the weekend," Leahy said as the last day of the Alito confirmation hearing ended.
Specter said Alito went further than any previous judicial nominee in the thoroughness of his answers, and the chairman voiced his disappointment with the partisanship that often plagued the hearings.
"We've gone very deeply into Judge Alito's background and studied his record," Specter said. "With respect to the answers Judge Alito gave, they're going to be differences of views. I thought we had to hear his answers before coming to judgment and I have urged colleagues on both sides of the aisle not to make up their minds before the hearings are over.
"I was frankly a little concerned about the opening statement on both sides — a lot of accusations on one side and a lot of hyperbole on the other and this is not the court of law I wanted Judge Alito" in, he added.
Senate Minority Leader Harry Reid of Nevada is "urging all Democrats to refrain from committing to a vote either for or against confirmation prior to the caucus next Wednesday," said spokesman Jim Manley.
Bush administration officials on Friday praised Alito for getting through the process with grace but also chastised lawmakers for, at times, getting too politically ugly.
"Judge Alito has shown over the course of the last week to the American people that he is a brilliant, honorable and decent, open-minded and fair jurist. He is someone who will represent the American people well on our nation's highest court. He is someone we can all be proud of," White House spokesman Scott McClellan said Friday.
"It's unfortunate that the American people had to see those kind of personal attacks injected into our confirmation process for the Supreme Court. I think that the American people expect better from their elected leaders."
"There's no mystery about Judge Alito, his record's been out there a long time," added Attorney General Alberto Gonzales. "Certainly, sufficient information is out there for the Senate to make an informed judgment."
Presidential Powers and Abortion
Before the committee proceedings ended Friday, committee Democrats received ammunition from some legal experts who said Alito's record shows that he defers too much to the executive branch and may be somewhat of a "rubber stamp" for the president if confirmed.
Democrats argue that recent news, such as President Bush authorizing the National Security Agency to conduct warrant-less wiretaps on some Americans if they are calling known Al Qaeda operatives outside of the country, is a prime example of what they consider a dangerous resurgence of presidential power. They also point to a presidential signing recently attached to a bill banning coercive and harsh treatment of terror detainees that exempts from punishment those directly following presidential orders.
Based on his studies of Alito's past opinions during his 15 years as a judge and work in past Republican administrations, Duke law professor Erwin Chemerinksky testified Friday that they "all point to a very troubling deference toward executive authority."
"I believe that at this point in time, it's too dangerous to have a person like Samuel Alito, with his writings and deference to executive power, on the Supreme Court," he added.
But those who have actually worked with Alito argue that in no way does the nominee for the highest court in the land allow his personal views to seep into his judicial decisions and that he does not approach any case leaning one way or the other.
"Judge Alito has been a judicious judge and my confidence he will be a judicial justice is based on my personal knowledge of the man and my belief his judicial temperament is rooted in his personal character," said Yale law professor Anthony Kronman, a Democrat. "I have no reason to think Judge Alito has a strong inclination to favor executive power over individuals' rights."
Added Nora Demleitner, a former clerk for Alito from 1992-93: "Judge Alito does not have a political agenda."
Democrats are also concerned with Alito's seeming unwillingness to come out and say he will not seek to overturn the landmark Supreme Court case that basically legalized abortion, Roe V. Wade. They continue to cite a 1985 job application for a Reagan administration position in which Alito stated he did not believe the Constitution protected a woman's right to have an abortion.
"It is very clear he will move the court in a very different and dangerous direction for women's legal rights," former NARAL President Kate Michelman testified Friday.
"I don't consider the right to personal privacy, the right to dignity and autonomy, the right to control one's life, a single issue," she said. "I do think it is profound and will have enormously important implications for women, for men, for families in this nation. I do think it is so serious and profound, he should be rejected on those grounds."
Alito this week has said he considers Roe to be a solid precedent that has been reaffirmed several times and that he does think the Constitution protects privacy.
Although Democrats and abortion advocates criticize Alito for not going as far as now-Chief Justice John Roberts did during his own confirmation hearings in saying Roe is very settled law, Specter said, "I don't think there's a dime's worth of difference" in the opinions of the two judges on the matter.
"I think he [Alito] went as far as he could go" in his answers on what he would consider when faced with abortion cases, said the pro-choice Specter.
Democrats to Filibuster?
In three days of asking the nominee more than 700 questions, Democrats have argued that Alito has been too vague to convince them he is is a moderate conservative and say they are worried about what they call "inconsistencies" in Alito's record and statements he has made to the committee.
The nominee's involvement in the controversial group, Concerned Alumni of Princeton, has been a source of much contention. CAP was formed in 1972 to, in part, challenge Princeton University's decision to admit women and minorities and protest the school's treatment of the ROTC program.
Alito has claimed he doesn't remember being active in the group yet Democrats want to know why he put it on his 1985 job application for a position in the Reagan administration.
Another issue that has dogged Alito is his participation in a 2002 Vanguard case. He told the Senate Judiciary Committee in 1990 that he would recuse himself from any Vanguard cases, since he owns six-figure shares in the mutual fund company. Alito has said his participation was an oversight; the ABA says he didn't do anything wrong nor did he gain anything.
"I have not forgotten that Judge Alito was only nominated after the radical right wing of the president's party forced [White House counsel] Harriet Miers to withdraw. The right wing insisted that Justice O'Connor be replaced with a sure vote for their extreme agenda. Four days of hearings have shown that Judge Alito is no Sandra Day O'Connor," Reid said in a statement. Reid did not attend the hearing though as minority leader he is an ex officio member of the panel.
Whereas Democrats argue that their questions are appropriate and they should delve into all aspects of a nominee for the highest court of the land, Republicans say Democrats are only trying to smear Alito's reputation and character because they haven't been able to find anything legally wrong with him.
"Anybody who can't vote for Judge Alito, it just shows how devolved the situation has become, how partisan it's become, how really filled with animosity it's become and how it's all over one issue and that's Roe v. Wade," said Sen. Orrin Hatch, R-Utah. "I deplored, really deplored, some of the tactics that have been used during this hearing. ... This is really a situation that's becoming desperate for honesty and decency. And, frankly, we've got to break through this somehow, some way.
Hatch added: "We never treated their two nominees, Justices Ginsburg and Breyer, the way these nominees since Chief Justice Rehnquist have been treated — never once."
Despite some Democrats' concerns, it likely won't be enough to defeat the nomination or to convince others to filibuster it. It takes 41 votes to sustain a filibuster, and there are 44 Democrats and one Democratic-leaning independent in the Senate.
Sen. Charles Schumer said Friday that said most Democrats on the Judiciary Committee were disappointed in Alito's answers, since he didn't back away from some "rather extreme" positions he took both as a judge and earlier in the Solicitor General's Office and on others, he didn't give satisfactory answers.
"I don't think he's going to get many votes from Democrats on the committee, but, again, no one has made up his or her mind completely," said the New York Democrat. "As for a filibuster, it's something we'll have to discuss. So it's not on the table or off the table right now."
Republicans argue that Democrats should not be influenced by the aggressive outside interest groups who have been driving the anti-Alito campaigns.
"I'm hopeful that some of our colleagues on the other side will begin to re-evaluate," said Sen. Jeff Sessions, R-Ala. "I know that they are pushed by some of the most aggressive and determined organizations that exist, some really hard left groups who have insisted that all Bush nominees really be challenged and confronted. And that's all right. But when the facts come and show these allegations they've been making are not true, I'm hopeful that more Democrats will see fit to vote for him than some people expect."
All Republicans who have made public their feelings on Alito enthusiastically support him. Some Democrats also said they have no huge qualm to confirming him.
"So far I have seen nothing during my interview with the nominee, the background materials that have been produced or through the committee process that I would consider a disqualifying issue against Judge Alito," said Sen. Ben Nelson, D-Neb., one of the so-called "Gang of 14" senators established months ago, which agreed that nominees would only be filibustered in "extreme" circumstances.
To allay some concerns, a panel of seven judges who have worked with Alito testified this week that the nominee is a man of great intellect and respect for the law, and he is a careful jurist who does not let his personal views taint his rulings.
"He is in the mainstream, he tends toward the right bank of the mainstream, I agree," said Charles Fried, former solicitor general and current Harvard law professor. But "when this Senate approved two wonderful judges to be judges — Justice [Stephen] Breyer and Justice [Ruth Bader] Ginsburg — it was perfectly plain they drifted toward the right bank of the mainstream. They were confirmed and properly so, I believe. Judge Alito should be as well."