Alito Past All Prologue for Monday
WASHINGTON – Samuel Alito will appear before the Senate Judiciary Committee Monday for the first day of a weeklong confirmation hearing that will probe the Supreme Court nominee's views on abortion, the death penalty, freedom of religion and other controversial topics.
Gearing up for what many believe will be a much more contentious confirmation hearing than the one held for Chief Justice John Roberts four months ago, lawmakers are already positioning themselves to support or oppose Alito.
Watch gavel-to-gavel, streaming live video of the Senate Judiciary Committee hearing on FOXNews.com.
After a morning breakfast with President Bush, Alito will be subject to 18 10-minute opening statements — starting at noon — before being introduced by his home state supporters, Sen. Frank Lautenberg, D-N.J., and former New Jersey Gov. Christine Todd Whitman, who worked for Bush in his first term.
Alito will then give his opening statement before the panel breaks for the day, and questioning of the nominee resumes Tuesday. More than two-dozen officials from outside groups are also expected to testify before the week's end about their support and opposition to the nominee.
During brief remarks to reporters outside the White House Monday morning, Bush said his pick for the bench has conducted himself with "dignity and class" leading up to the confirmation process.
"Sam's got the intellect necessary to bring a lot of class to that court. He's got a judicial temperament necessary to make sure that the court is a body that interprets the law and doesn't try to write the law," the president said. "I know the American people will be impressed, just like I have been impressed and a lot of other members of the Senate have been impressed.
Bush said he wants the Senate to conduct the hearings in the "dignified way" he said Alito deserves.
"The Supreme Court is a dignified body; Sam is a dignified person. And my hope, of course, is that the Senate bring dignity to the process and give this man a fair hearing and an up or down vote on the Senate floor," he added.
Even in his opening statement, Sen. Arlen Specter, chairman of the Senate Judiciary Committee, perhaps unwittingly, defended Alito's ability to serve on the bench by answering the ever-present questions — how will Alito handle the abortion issue and what would he do about the ruling in 1973's Roe v. Wade decision that legalized abortion?
"This hearing will give Judge Alito the public forum to address the issue, as he has with senators in private meetings, that his personal views and prior advocacy will not determine his judicial decision, but instead he will weigh factors such as stare decisis on the precedents, women's (and men's, too) reliance on Roe, and whether Roe is embedded in the culture of our nation," reads the opening statement from the Pennsylvania Republican, who declares himself undecided on the nominee.
According to some analyses of Alito's record on abortion, the 3rd Circuit Court of Appeals judge is not a reflexive decision-maker. Though Alito wrote two documents in the 1980s that clearly demonstrate his opposition to abortion, as a judge, he has upheld existing law sometimes, other times, he has supported restrictions on abortion.
Sen. Dianne Feinstein, D-Calif., said she is not convinced Alito can be impartial. She told "FOX News Sunday" that she represents a lot of women who don't want to return to the days when abortion was illegal.
"My question is are his views, let's say on abortion, the same as they were in 1985 when he wrote in an application, 'the Constitution does not protect a woman's rights in this area.' Now, if that's true and he still holds to that, this will make him a very difficult nominee for many of us," said Feinstein.
"What does the record show? That this is a person that does what judges are supposed to do — look at the law as it applies to the case and look at the facts and make your decision on the four points of the law," said Sen. Charles Grassley, R-Iowa, pointing out that on some abortion rights rulings, Alito was bound by Supreme Court precedent and stuck to that body's rulings rather than reinterpreting the law.
"He's been on the court for 15 years, and there's absolutely no indication that he's an ideologue, a person who will ignore the law to enact their own personal agenda. So he's a solid conservative, and I think he'll be confirmed, probably on a party line vote in the committee," said Sen. Lindsey Graham, R-S.C. All three lawmakers — Feinstein, Graham and Grassley — serve on the Senate Judiciary Committee.
Graham said Alito's opinion on abortion rights shouldn't exclude him from getting an up-or-down vote. For example, Justice Ruth Bader Ginsberg, who was appointed to the high court by President Clinton, was openly pro-Roe and was confirmed by a vote of 96 to 3.
"Justice Ginsberg openly embraced the idea that there was a constitutional right to an abortion. I don't agree with that, but Republicans who were pro-life and, I guess, a few Democrats who were pro-life, did not hold that position against her. They believed that she would decide the cases based on the facts and the law," Graham said.
Many Rights to Discuss
By no one's admission is abortion the central issue facing Alito during his confirmation hearing, but on it and other laws, with a seemingly conservative justice up to replace a moderate, Justice Sandra Day O'Connor, comparisons are sure to be made and weighed.
"Two big issues will be coming up to the court" shortly after the confirmation vote, said FOX News Supreme Court analyst Tim O'Brien. "The one is the scope of the executive branch of power. Justice O'Connor was skeptical. She ruled against the administration when they argued enemy combatants were not allowed access. Judge Alito has taken a broad view ... This divides the court and Alito's views are critical.
"Another huge issue is campaign finance reform. It seems complicated but it is simple. Money can have a corrosive effect on the campaign, but that conflicts with another basic value of free speech. Justice O'Connor [would] vote in favor of campaign finance reform. The court [could be]sharply divided five-four. Alito is seen as a champion of free speech. He could go the other way and campaign finance reform could be up for grabs if he is confirmed." O'Brien said.
Alito comes to the hearing with 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
With that long list to choose from, "cases could be selected which would place him at any and every position on the judicial spectrum," Specter is to say in his opening remarks.
Alito's prior writings are sure to provide opportunity for senators — Democrats and Republicans alike — to question the nominee's beliefs, measure his approach to law and argue that his answers reinforce their positions.
If Alito is anything like Roberts, and many say he is — at least in terms of intellect and temperament — he will keep his opening remarks short. Specter notes that Alito has the opportunity to respond to questions as extensively or with as much brevity as he prefers.
Several issues have been named as likely to come up, including First Amendment rights guaranteeing freedom of speech and religion; Fourth Amendment rights relating to unreasonable search and seizure, warrants and probable cause; and the death penalty.
"We know this is a conservative nominee. The question is how conservative. The question is what is his respect for individual rights, his position on the expansion of presidential powers, the carrying out the legacy — what I believe is the legacy of the Rehnquist Court, which has been to constrict congressional rights to legislate," Feinstein said.
Grassley said he intends to question Alito primarily on the 10th Amendment, or states' rights issues, the commerce clause and judicial restraint. Committee Democrats, including Feinstein and Sen. Chuck Schumer, D-N.Y., have raised questions about Alito's argument that Congress can't legislate activities under the interstate commerce clause when the activities have nothing to do with interstate commerce. Graham said he is interested in listening to that discussion.
"The court's developing kind of a new line of reasoning that Congress doesn't have the ability under the interstate commerce clause to regulate our life completely. There is some limit on congressional power. You just can't say interstate commerce, even though there's no interstate connection, and regulate. So it's a interesting debate," he said, adding that he accepts Alito's reading of the law.
From other senators, presidential powers are also likely to be a lingering topic, particularly since a frenzy has erupted around Bush's authorization of the National Security Agency to eavesdrop without a warrant on American citizens talking with possible terrorists overseas.
The president's critics "are trying to make a case that President Bush is assuming more power than presidents over a long period of time have assumed ... and it's simply not true," said Grassley.
On a less tangible matter, Alito must also meet another test, said Schumer. Even though the American Bar Association unanimously gave Alito a "well-qualified" rating, Schumer said more importantly than qualifications and judicial temperament, measurements used by the ABA, Alito must demonstrate he has the correct "judicial philosophy" to be a member of the high court.
"They have enormous power in this lifetime appointment to be a Supreme Court justice. How are they going to use it? Are they going to follow the law or are they going to impose their views on the American people in a very ideological way? And judges at the extreme far right, far left, tend to do that. The big, outstanding question about Judge Alito is the third question ... There's a great deal of question on his judicial philosophy. He has said some very, very, very extreme things throughout his career, both when he worked for Ronald Reagan and as a judge," Schumer said on "Meet the Press" on Sunday.
Dropping The F-Word
As is to be expected in the Senate, lawmakers aren't minimizing their role in the confirmation process or the importance attached to the chamber's decision-making authority.
"No senator's vote, except for a declaration of war or authorization for the use of force, is as important as voting to confirm a United States Supreme Court nominee for a lifetime appointment," Specter says in his opening statement.
"There is a heavy sense of drama as these hearings begin. This is the quintessential example of separation of powers under our constitutional process as the president nominates, the Senate confirms or rejects and the successful nominee ascends the bench," reads the opening statement.
For weeks, Alito has been participating in so-called "murder boards" — mock cross-examinations by top lawyers in preparation for his confirmation hearing. Those familiar with the sessions say Alito has performed brilliantly, but his weakest area has been on abortion-related issues.
Feinstein said she is prepared to filibuster Alito if she becomes convinced he will overturn Roe v. Wade. Schumer also refused to rule out the possibility. Feinstein said the bottom line is that she needs to be convinced that Alito is "in the mainstream."
What is central is "that he understands the individual rights, the civil rights, the labor rights, the basic rights of people that often come before the Supreme Court, and that he believes the Constitution protects these rights," she said.
"I think you are hearing the word 'filibuster' because they are getting so much pressure from outside interest groups, whether the labor unions or pro-abortion groups or Ralph Nader type or civil rights. They are the base of the Democrat Party," Grassley said.
Democrats say they will not decide whether to filibuster or try to delay a committee vote until after the confirmation hearing ends.
If Democrats attempt a filibuster, Graham — a member of the bipartisan Gang of 14 that prevented implementation of the nuclear option, a Republican procedural move that would have stripped Democrats of the maneuver — said he is ready to turn around and vote for Senate Majority Leader Bill Frist's decision to employ that option.
"I would consider that not only not an extraordinary circumstance, but a threat to the independence of the judiciary, and I would stop it in its tracks with my vote," he said.
Specter has called for a Jan. 17 committee vote and Republican leaders want a full Senate vote on Jan. 20. Democrats have made no promises to stick to that schedule.
FOX News' Megyn Kendall and The Associated Press contributed to this report.