Alito Faces More Hurdles in Confirmation Hearings

Samuel A. Alito is widely expected to be confirmed to the U.S. Supreme Court this month, but beginning Monday he will have to run a more treacherous gauntlet to get there than the court's newest justice did less than four months ago.

Democrats have refused to commit to the timeline laid out for Alito's nomination, aides said Friday. President Bush and Senate Majority Leader Bill Frist had hoped to get a floor vote by Jan. 20, less than two weeks after the hearings begin.

Contrary to earlier reports, Senate Democrats have not yet decided whether to request a one-week delay in the Senate Judiciary Committee vote, tentatively scheduled for Jan. 17. Committee rules guarantee a delay upon request, but the rare maneuver was last invoked in 1971, when William H. Rehnquist and Lewis H. Powell, Jr., were set to be confirmed simultaneously as associate justices.

"No decision has been made regarding a Senate Judiciary Committee rule that permits any committee member to request a one-week postponement of a committee vote," a spokesman for Senate Minority Leader Harry Reid said Friday.

But Reid has discussed the matter with Frist, and declined to give assurances Democrats would not seek a delay, a Frist aide told FOX News. Aides to Democratic senators said they wanted to keep the delay option open. The decision to request a delay will more likely be made once the hearings are under way.

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From the get-go, Alito's nomination has spelled trouble for liberals and some moderates, in large part because Bush's initial choice for the job, White House counsel Harriet Miers, received such a drubbing by conservatives. Miers bowed out within a month of being tapped after a highly public and embarrassing railroading by the president's conservative base, which lobbied for another justice in the framework of conservative bastions Antonin Scalia and Clarence Thomas.

It seems that Alito, nicknamed "Scalito" by some lawyers because his judicial philosophy invites comparisons to Scalia, has won the heart of religious conservatives, who found him a like-minded justice. But as court observers learned in the run-up to Chief Justice John Roberts' September hearing, few clues about what kind of justice the nominee would be were actually found in the political hysteria surrounding his nomination.

Alito's public vetting before the committee, which begins on Monday, will differ in substance and tone from that of Roberts'. The difference is especially acute because Alito, a self-described conservative, is nominated to replace Justice Sandra Day O'Connor, a frequent swing vote in highly contested cases before the court. Roberts replaced the late Chief Justice Rehnquist — both were considered cut from the same conservative cloth.

Democrats fear Alito, 55, is outside the mainstream on such issues as executive power, abortion rights, the establishment clause and racial and sexual discrimination. They have made abundantly clear they intend to thoroughly review Alito's lengthy judicial career and the body of work he has accumulated during the hearing.

Deference to the Executive Branch

The Supreme Court is expected to take on a slew of War on Terror-related cases in the coming years. With recent revelations that President Bush authorized wiretaps of Americans without warrants — actions that Bush said were granted to him by the Constitution and anti-terror legislation — the question of how much government may encroach on protected liberties in wartime will likely take center stage in the Alito confirmation debate.

Retiring Justice O'Connor famously rebuked the Bush administration in 2004's Hamdi v. Rumsfeld.

“A state of war is not a blank check for the president when it comes to the rights of the nation’s citizens,” she wrote in a majority opinion that held that U.S. citizens detained as enemy combatants were entitled to a hearing before a judge.

Whether Alito would have joined Thomas and Scalia in their dissents in that case is a point of intense interest to senators deciding whether to confirm the 3rd Circuit Court judge for the high court.

So far, the signs are unclear. In a 1984 memo written by Alito when he was assistant to the solicitor general under President Reagan, the government counsel advised his superiors that the attorney general could not be sued for warrantless wiretaps of Americans.

The Dec. 23 Associated Press story that appeared in numerous newspapers and Web sites, including, described the memo as defending "the right of government officials to order domestic wiretaps."

But Alito did not address the merits of wiretapping powers in the memo. Instead, he urged the administration to approach the issue cautiously, stating that the Supreme Court would not be sympathetic to an argument for blanket immunity. He was right — the following year, in a case involving then-Attorney General John Mitchell, the Supreme Court ruled that government could not use national security interests as a shield against lawsuits over alleged criminal activity.

While much has been made of Alito's statement that he did not question whether the attorney general should have the immunity, it's hardly proof that the then-government attorney was a strong believer in expansive executive powers.

"The stuff about the wiretapping memo is ridiculous," said Stuart Taylor, a columnist at the National Journal and fellow at the Brookings Institution. "His memo says nothing, absolutely nothing about what government's wiretapping powers ought to be.

"It was already the position of his administration that Mitchell should have immunity," Taylor told "This is exactly what you do when you're in the solicitor general's office in cases like this. You argue for the broadest executive power position that can be argued. No one in any administration — Democrat or Republican — would have said anything different."

Sen. Charles Grassley, who sits on the Senate Judiciary Committee, agreed that Alito's opponents were overreaching in their interpretations of the memo.

"There is nothing unusual about a person who is a legal adviser for the president doing whatever he can to protect presidential power that's written in the Constitution," the Iowa Republican told "He's not going to propose anything that detracts from the president's [constitutional] powers."

But the onus will be on Alito to convince more skeptical committee members that views expressed in the memo were not his own, said Sen. Edward Kennedy, D-Mass.

"His point was very clear about the goal of executive power. I think it is an area which is of enormous importance and consequences during these hearings," Kennedy told reporters on Thursday.

According to a study conducted by the Washington Post, charges that the former U.S. attorney has often sided against criminal defendants, including those on death row, are not unfounded. The study, which reviewed more than 200 opinions, indicated that Alito more often than not shows deference to the executive branch though he is not an extremist ideologue.

"What is very troublesome is a very full range of cases where he finds very conveniently for government power at just about every level. He finds qualified immunity out there [for government officials] just about at any time," Kennedy said.

Many of the judiciary committee members, including Chairman Arlen Specter, have declared their intent to question Alito vigorously on his views of wartime powers and the newly unveiled National Security Agency's eavesdropping program. Specter is pushing for separate hearings on the controversial program to also be held this month.

Alito will surely approach such questions cautiously, as Roberts did during his hearings, and decline to give answers that might define him before he ever reaches the bench.

"He is not a politician running for office or making pledges of performance if confirmed, so he'll have to walk a very careful line between respect for Congress' prerogatives and how power should be divided between the legislative and executive branches," said Texas Republican Sen. John Cornyn, also a committee member. "I don't think he'll give any definitive answers."

Abortion: Law of the Land?

Whether fairly or not, Alito has been compared unfavorably to Roberts, whose youthful good looks, commanding interrogations and handy zingers make oral arguments far more entertaining. But those who know the New Jersey native, who Newsweek described as "dweebish," say his reserved demeanor belies an exceptional and fair-minded intellect.

"My impression of him, and the impressions of everyone in the office, was he is a very fine lawyer, a very hard worker, a beautiful writer and absolutely, meticulously objective," said Charles Fried, a former solicitor general for whom Alito worked. Fried is not alone in his high praise; several of Alito's former clerks and students, quite a few of them Democrats, have publicly stated their confidence in his elevation to the court.

Fried said that while he was solicitor general, he believed Roe v. Wade, the landmark decision legalizing abortion, should have been overturned, but that since then the precedence established by the high court has forced him to change his mind. He said he believes Alito, who wrote in a memo and job application in the 1980s that Roe was wrongly decided, has also come to accept the ruling as law.

"He's obviously a conservative man but in disposition, not in some kind of ideological way," Fried, who now teaches at Harvard Law School, told

As a judge, Alito has shown deference to the court's precedence on abortion law, in 2000 striking down a New Jersey ban on late-term abortions. But those who support access to abortion say they will need more assurance than that.

"Replacing Sandra Day O'Connor with Samuel Alito would set women back decades, and would unravel O'Connor's legacy of moderation on the court," said Kim Gandy, president of the National Organization for Women.

Court of Independence

Opposition to Alito also comes from civil libertarians who say they fear he is part of a court-packing plan to aid and abet Bush's War on Terror. Several memos Alito wrote as a Department of Justice attorney during the Reagan years and other statements he has made are alarming to civil rights supporters, civil libertarians and women's rights groups.

"New allegations about the White House’s civil liberties violations and violations of federal law make the Senate’s obligation to thoroughly examine the nominee’s record even more imperative,” added the American Civil Liberties Union in a recent press release that charged Alito with having "taken a hostile position towards civil liberties and civil rights.”

But if history is any indication, few if any justices who have reached the high court bench have acted as puppets of the president who nominated them.

"There is no pattern of demonstration that justices appointed by the president then try to defend the president's constitutional prerogatives," said Bruce Fein, a Justice Department lawyer under Reagan who has criticized the Bush administration's spying program.

Former Chief Justice Warren Burger wrote the opinion that forced President Nixon, who nominated him, to hand over tapes and documents in the Watergate scandal, Fein noted. "I don’t think the fact that Alito defended presidential prerogative [as assistant solicitor general] means he's a slam-dunk in defending Bush in eavesdropping."

The National Journal's Taylor agreed.

"It would be very rational for Bush to say, 'Let's make everyone think this is about abortion when it's really about executive power, but he has no basis for thinking these guys are on board with him," he said, referring to Roberts and Alito.

"The fact of the matter is very few appellate judges have had reason to rule on huge executive power issues, so the track record is not that informative," Taylor added, noting that if Bush really had executive power in mind, he should have gone with the more malleable Attorney General Alberto Gonzales, whose name was widely floated during both recent court vacancies.

Alito has demonstrated jurisprudence more conservative than O'Connor's in cases dealing with affirmative action, the establishment clause and criminal justice. A shift of some kind can be expected with him on the court, say observers, but whether it's tectonic may not be known even after the hearing.

Still, even slight departures from O'Connor could have significant real-world effects on the lives of everyday Americans. Kennedy sought to remind Americans the importance of the stakes involved.

"Outside of sending Americans to war there is no responsibility, no duty that we have that is more important in fulfilling the responsibilities of United States senators than sending someone to the United States Supreme Court," the longtime judiciary committee member said.

"The hearings are really not so much about getting information from the nominee as they are a showcase for the senators," Cornyn said. "I expect Alito will weather it fine and will be confirmed."

Grassley also predicted Alito would be confirmed but with a slighter majority than Roberts, especially if senators uncomfortable with Bush's spying program do not get satisfactory assurances from the nominee.

"I believe the hearings will be a little more contentious. Alito is as smart as Roberts, but maybe not as smooth," Grassley said.

The senator also dismissed the notion that Alito would spark an ideological shift on the court.

"Alito is maybe less moderate than O'Connor, but that's still no more than four conservatives, four liberals and one moderate. How much more balance can you have?"