Published January 13, 2015
In a party-line vote, the Senate Judiciary Committee on Tuesday recommended that Samuel Alito's nomination to the Supreme Court be sent to the full Senate for approval. The Senate is next to take up debate, beginning Wednesday.
Most, if not all, of the full Senate's 55 Republicans are expected to support Alito and most of the 44 Democrats to oppose him. Independent Sen. Jim Jeffords of Vermont has not said how he will vote.
Only Republican Sens. Lamar Alexander of Tennessee; Lincoln Chafee of Rhode Island; Susan Collins and Olympia Snowe of Maine; and Ted Stevens of Alaska have not yet publicly committed to vote for Alito. With Democratic Sen. Ben Nelson of Nebraska's support, 51 senators, a simple majority, have said they are on board in support of Alito.
Twenty Democrats have publicly stated opposition to Alito while the other 23 are still publicly undecided or refuse to say how they will vote.
Committee Republicans had warned against a party-line vote, saying it will set a harmful precedent in opposing a judicial nominee strictly on how he or she may decide certain cases.
"I think it is, unfortunately, it is so partisan," Committee Chairman Arlen Specter told FOX News after the panel approved Alito. "I think it is not a good sign for the country to have the appearance for a party-line vote but senators vote as they choose. We really need to have the party-line straightjacket taken off."
But committee Democrats said they had no intention of voting for the 3rd Circuit Court judge, whom they described repeatedly as beholden to presidential power and against abortion rights.
"The record demonstrates that we cannot count on Judge Alito to blow the whistle when the president is out of bounds," said Sen. Edward Kennedy, D-Mass. "He is a longstanding advocate for expanding executive power, even at the expense of core individual liberties. In contrast to Chief Justice Roberts, Judge Alito's record and testimony clearly reveal a willingness to grant the president a far greater role than is currently recognized by the Supreme Court."
"I, for one, really believe that there comes a time that you just have to stand up especially when you truly believe that the majority of people in America believe what you do," said Sen. Dianne Feinstein, D-Calif., referring to public opinion supporting abortion rights.
Specter said he was disappointed that all eight panel Democrats were opposing Alito, who was not present but planned to visit some Republican senators later in the day. Specter noted that the nominee answered as thoroughly as he could on issues such as abortion and executive power, without inappropriately showing how he would rule on such cases. All 10 Republicans on the committee will vote for Alito.
"I'm personally sorry to see a party-line vote out of this committee and very close to a party line vote out of the full Senate but we all have our points of view. I hope Judge Alito would consider himself confirmed by all the people if indeed he is confirmed," the Pennsylvania Republican said in opening the hearing on whether to send Alito's nomination to the full Senate for consideration.
"I fear a very bad precedent is being set today, a precedent that a unanimous minority will oppose a nominee on political grounds not because the nominee is in any way unqualified," added Sen. Jon Kyl, R-Ariz. "Judge Alito deserves a 'yes' vote from everyone on this committee."
Democrats say they have great concerns about Alito, who, if confirmed, will replace retiring Associate Justice Sandra Day O'Connor. They say they worry Alito, 55, will do nothing to curb what they consider an overreaching of presidential power, and specifically cite Bush's direction to the National Security Agency to eavesdrop on phone and e-mail conversations of people inside the United States if they send or receive communications from overseas Al Qaeda suspects.
The panel's ranking Democrat, Sen. Patrick Leahy of Vermont, said Alito's nomination "threatens the fundamental rights and liberties" of all Americans.
"I wish we could have somebody who would have the support of all Americans," Leahy said of the court nominee. "There are many, many, many people in this country who would have had 90 to 100 votes in the Senate, Democrats and Republicans would have joined eagerly to support them."
Committee Democrats who opposed Alito are Leahy, Kennedy, Dick Durbin of Illinois, Joseph Biden of Delaware, Dianne Feinstein of California, Herb Kohl and Russ Feingold of Wisconsin and Charles Schumer of New York.
Republican Committee members who supported Alito were Sens. Specter, Kyl, Orrin Hatch of Utah, Charles Grassley of Iowa, Mike DeWine of Ohio, Jeff Sessions of Alabama, Lindsey Graham of South Carolina, John Cornyn of Texas, Sam Brownback of Kansas and Tom Coburn of Oklahoma.
A full vote from the Senate may not come until next Tuesday, the day of President Bush's State of the Union address. Senate debate begins Wednesday and Republicans said they hoped for a confirmation vote by Friday, though Democrats have declined to guarantee one.
Republicans say the delay is the result of Democrats hoping to prevent a victory for the president before his address, but one aide to a Democratic Judiciary Committee member said he thought Senate Majority Leader Bill Frist may be holding off because some Republicans will be in Davos, Switzerland, for the World Economic Forum.
Alito protesters have events planned all week. On Tuesday, groups holding "Oppose Alito, Save Roe" and "Stop Alito" signs lined up outside the U.S. Capitol.
Jockeying for the Next Election?
Only one Democrat so far is supporting Alito, Nebraska's Nelson. Conservative Chief Justice John Roberts won the votes of 22 Democrats last year. Eleven Democrats broke with their party and voted for Clarence Thomas, a nominee of President George H.W. Bush in 1991.
"I am disappointed that the Democratic leader Harry Reid has apparently urged his colleagues to vote no on this nomination. … I think it may affect votes on the floor to make this a leadership issue," Sessions said.
"From what I can see, the Democrats are going to make a cause celebre out of this, even though Judge Alito is more than qualified," Hatch told FOX News on Tuesday before the vote, adding that Democrats are making abortion the big issue on which to oppose Alito. "I'm afraid they're making a political fiasco out of this," he added.
During a press conference later Tuesday afternoon, Reid of Nevada announced he would vote "no" when Alito's nomination came to the full Senate. He said the issue of executive power was the largest one that concerned him regarding Alito; the nominee repeatedly said during his confirmation hearing that no one was above the law, not even the president.
"I have no confidence he will serve as a real check on abuse of power so expansive with this administration," said Reid, who is an ex-officio member of the Judiciary Committee. "President Bush continues to believe he is above the law ... No one is above the law and we need a strong federal judiciary to protect against this abuse."
During the hearing, Hatch noted that Justice Ruth Bader Ginsburg was confirmed with a vote of 96 to 3, while Justice Stephen Breyer was approved 87 to 9 — both were Clinton administration nominees; Ginsburg was previously a lawyer for the ACLU.
"We all knew they were social liberals ... yet we voted for them because they were qualified and they were put forth by the president of the United States. …Where were the filibusters, where were the litmus tests and the scorecards?" Hatch said. "We acknowledged their obvious qualifications and judicial temperament and we gave the then-president the deference to the separation of powers … Judge Alito should receive at least as much support as they did."
Republicans said Democrats knew Bush would nominate a conservative, but that doesn't mean that the former federal prosecutor and lawyer for the Reagan administration will change the direction of the court.
"What did you expect President Bush to do when he won?" asked Graham, echoing Hatch's points about how Republicans still approved Breyer and Ginsburg despite their reservations.
"What's changed? It's not the quality of the nominees, it's the qualities of the process," Graham said. "I really do worry that we're going to take the Supreme Court nomination process and boil it down to abortion. That won't be good for the country."
Graham also took a shot at Democrats who say Alito is out of the mainstream and are opposing him so that they can use objectionable Supreme Court decisions as an issue in the upcoming election.
"We'll welcome that debate on our side, we'll clean your clock ... Judge Alito is closer to the mainstream of America than People for the American Way" Graham said, referring to one of the may liberal interest groups who have been lobbying against Alito. Republicans argue they are objecting to the nominee because they can't get their initiatives passed in Congress or the states and so are resorting to the courts.
"We're no longer advising and consenting, we're jockeying for the next election," Graham continued.
Senate Confirmation Likely
In recent judicial battles, a 10 to 8 party line vote would be the first sign of the possibility of a Democratic-led filibuster. But Democrats are not expected to try that with Alito, who countered sharp Democratic attacks on his judicial record and personal credibility without a major stumble during his confirmation hearings earlier this month.
Democrats like Kennedy essentially tried to paint Alito as an unethical bigot by continuously pressing him on his college involvement with the controversial Concerned Alumni of Princeton group, as well as his ruling on a case involving Vanguard mutual fund company even as he had holdings invested with the company.
"Given Judge Alito's refusal to answer many important questions, given that he's out of the mainstream on too many issues and would move the country backward and given the pledges that following precedent would give little consolation ... I have no choice but to vote 'nay' and urge my colleagues to do the same," Schumer said.
Republicans, in turn, complained that Democrats couldn't find anything substantive to oppose Alito on in regards to his legal record, so they turned to personal attacks.
"In addition to his impeccable qualifications, the people who know him and his work the best have told the committee that he is a fair and even-handed jurist. His colleagues on the 3rd Circuit and his former law clerks — liberal and conservative alike — report that he is a jurist who keeps an open mind and does not try to impose an ideological agenda from the bench," Sen. John Cornyn, R-Texas, said Tuesday. "These reports from the people who know him the best-including those who do not share his political views are far more credible than the distortions we have heard from his detractors."
Bush, speaking about the War on Terror and other topics in Kansas on Monday, heaped praise on Alito and pointed out that the American Bar Association unanimously gave Alito the highest possible rating.
"You don't have to worry about him in the committee," Bush told an audience at Kansas State University. He called Alito "a very, very smart, capable man. When you talk to Sam Alito, you think, 'smart judge.'"
The president is aware that some Democrats like Schumer have hinted they may filibuster the nomination but he pointed out that the so-called "Gang of 14" — seven moderate members from both political parties — have vowed to try to prevent a filibuster unless "extraordinary" circumstances arise.
"There has been no sign of any extraordinary circumstance, except for this extraordinary thing — he's extraordinarily capable to serve on the Supreme Court," Bush said Monday.
FOX News Supreme Court analyst Tim O'Brien agreed that as of now, nothing in sight could derail the nomination.
"If there are any rabbits in the hat, we don't know about them. It is possible Democrats could continue to debate this and delay until Tuesday … [but] it seems most unlikely," he said. "This could be the closest vote since Clarence Thomas" in 1991, when that nominee was confirmed by a vote of 52 to 48, the closest margin of success for a Supreme Court justice in a century.
FOX News' Kelly Wright contributed to this report.