How Is Judge Alito Holding Up in His Confirmation Hearings?

This is a partial transcript of "Special Report With Brit Hume" from Jan. 10, 2006, that has been edited for clarity.

BRIT HUME, HOST: Jim, thank you. Fox News correspondent Megyn Kendall has been following Tuesday’s hearing closely and joins me here with some further observations.

Megyn, question: It appeared today that even though there were some pointed questions that the members on the Democratic side who might be his antagonists, the nominee’s antagonists were not being terribly aggressive. Why do you think that was?

MEGYN KENDALL, FOX NEWS CORRESPONDENT: Well, I think they were several areas in which the Democrats tried but fell short today, and I think one of the first things I noticed was that they were focusing in large measure on issues that were sort of go nowhere issues in terms of the American public.

Take for example the extended focus on this Rybar case. Without getting into the details, it’s a commerce clause case. Does Congress have the right to regulate the possession of machine guns when that possession is only inside one state or doesn’t it? It sounds sexy to sort of call a machine gun Sammy and say he is in favor of machine guns, but that had nothing to do with the actual facts of the case, and it was a pitched today by Democrats like it had to something do with the case. So really all the public heard was something to do with this Rybar that had to do with the commerce clause. Yawn. It didn’t stick.

The other thing I saw was over promising and under delivering. Take Sen. Ted Kennedy. He was crossing Alito on this issue of the little guy. He was asking him about trends and how he hadn’t actually ruled for black plaintiffs. That was something that Kennedy had in his written statements opening that he had never ruled for black plaintiffs. That’s easy to debunk, and you saw the Republicans coming out repeatedly today citing cases in which he had ruled for black plaintiffs. So he sort of over promised and he didn’t need to. He could have focused on look, Judge Alito, the trends they see from you on the court suggest you’re anti-little guy.

HUME: What’s not clear to me is whether the Democrats were inept or whether this is a case where we have before us a nominee who has been pretty careful in his judging and pretty reasoned and pretty reasonable and doesn’t really make a very good target. What’s your thought on that?

KENDALL: Well, I think with all due respect to the Democrats, maybe a little bit of both. On your first point, ineptitude, there was very little follow-up. We saw with Senator Kohl, he would ask a question, and it sounded good, and Alito would hit it out of the park and there would be no follow-up. He wouldn’t break down the answer and ask him to explain specifically what he meant, so he wasn’t able to close it up for us to the point where we understood what his initial point was.

HUME: So we don’t really know whether Alito would have been able to bat the follow-ups out of the park too.

KENDALL: Exactly. We have no idea, which is why it was so disappointing. You didn’t see the intellectual substantive exchange. You saw the ball pitched, the ball hit, move on to the next ball. So it was sort of not that interesting to watch because you weren’t learning a lot about the nominee. Having said that, I do think that the subjects on which they were crossing him lacked a lot of ammunition.

HUME: You mean cross-examining?

KENDALL: Yes. Let’s take the Vanguard recusal issue. They spent a lot of time on it.

HUME: Quickly, the Vanguard — let me see if I can sum it up. You correct me if I’m wrong. He owns some Vanguard mutual funds, products of that company. A case came before him that didn’t involve his holdings directly but involved the company that sold him the mutual fund. And managed it.

KENDALL: Right.

HUME: And he didn’t recuse himself although he indicated to the Senate Judiciary Committee that he promised years earlier in his confirmation that if something involving Vanguard came before him he would recuse himself. Later when his participation in it was objected to by the plaintiff, he said, you got a point. The case should be reheard, and it was.

KENDALL: That was after he had ruled against the plaintiff in favor of Vanguard. He said let’s have it reheard, and it was reheard by a separate, independent panel without Alito and that panel came to the same conclusion that Alito’s panel did. Well, they crossed him on this, saying, look, you said you would recuse yourself. This is Kennedy in particular, saying you said you would recuse yourself and you didn’t, so I don’t care what your reasons were. You made this committee a promise and you didn’t live up to your promise. And he zeroed in on the fact that there were opinions from these two ethics experts that rehabilitated Alito on this point that said there was nothing wrong with him hearing this case.

And he said did those experts address the fact that you promised this committee and the answer was yes. Kennedy just didn’t have his facts straight. Both ethics experts had addressed that and didn’t see any sort of substantial problem. So those are the types of attempts and failures we saw on the Democrats part today.

HUME: All right, Megyn, thanks very much.

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