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Alito Called Harder Sell in Substance and Style

The Nation

Both sides say his long career on the bench and a changed climate in Washington promise a tougher road than the one Roberts walked.

January 09, 2006|Maura Reynolds | Times Staff Writer

WASHINGTON — Republicans and Democrats agree about little in Washington these days, but they concur on this: The confirmation hearings for Supreme Court nominee Samuel A. Alito Jr., which open today, will be utterly unlike those for John G. Roberts Jr.

For one, the nominee is different. Roberts was smooth and youthful-looking, with charmingly fidgety children and just two years on the federal bench. By contrast, Alito has displayed the physical awkwardness of an absent-minded professor and -- more significantly -- has 15 years' worth of rulings as a federal judge for critics to pick apart.

Second, the political climate in Washington has shifted considerably in the three months since Roberts was confirmed as chief justice.

These days, many Republicans are preoccupied with containing the damage from ongoing controversies. These include whether President Bush was justified in authorizing domestic spying by the National Security Agency, a dispute that strikes at a core function of the Supreme Court -- presiding over the system of checks and balances between the executive and legislative branches.

Democrats, meanwhile, are looking for ways to capitalize on this and other issues, and the Alito hearings offer a venue with a national television audience.

"Our goal will be to highlight the difference between the parties on ... key constitutional issues," said Jim Manley, a spokesman and strategist for Senate Minority Leader Harry Reid (D-Nev.).

Roberts' reassuring manner and flashes of humor helped win him unexpectedly high support from Democrats after his September hearings before the Senate Judiciary Committee. And to the extent Democrats worried that he was more politically conservative than they wanted, the fact he would replace an equally conservative justice, former Chief Justice William H. Rehnquist, made him more palatable.

In the end, the Senate's 44 Democrats split evenly over Roberts, who won his confirmation vote, 78 to 22.

In nearly every way, Alito is expected to be a more controversial nominee.

For instance, he wrote in a 1985 job application with the Justice Department that he was "particularly proud" of his efforts to promote the view "that the Constitution does not protect a right to an abortion," a red-flag statement for core Democratic voters.

In addition, as a Justice Department lawyer, Alito argued for an expansive interpretation of presidential power. The issue resonates amid the furor over domestic spying, in which the White House has argued that the president's authority as commander in chief gave him the right to order wiretapping without warrants.

Moreover, heightened Democratic opposition is expected because he would replace Justice Sandra Day O'Connor, one of the court's swing votes on issues such as abortion rights.

There is "perceived to be more at stake in terms of the balance of power on the court on certain key issues," said Sen. John Cornyn (R-Texas), a Judiciary Committee member and a firm Alito supporter.

Noting the uncertainty over whether another Supreme Court vacancy would occur during Bush's second term, Cornyn said he thought there might be some sense among Democrats "that it's now or never, in terms of efforts to try to defeat his nominees."

Jennifer Duffy, who studies the Senate for the nonpartisan Cook Political Report, said she expected Alito to gain confirmation to the high court, but by no more than a handful of votes.

"He's going to have to make a really big mistake, or Democrats are going to have to succeed in turning him into a boogeyman, or he will be confirmed," Duffy said. "But the Democrats' efforts haven't succeeded so far, and they're running out of time."

Congressional strategists on both sides said they shared Duffy's view of the vote count. But with Republicans weakened, most recently by the influence-peddling scandal surrounding former lobbyist Jack Abramoff, some Democrats are mulling whether to try to thwart Alito's confirmation through a filibuster, a tactic in which a minority party can block a vote by refusing to end debate.

"We are more apt to filibuster now than we were two weeks ago," said one Democratic leadership aide on Capitol Hill, who requested anonymity when discussing party strategy.

That view was bolstered by comments on Sunday talk shows by Democrats on the Judiciary Committee.

Asked on "Fox News Sunday" whether she would join a filibuster of Alito's confirmation, Sen. Dianne Feinstein of California responded: "If I believed he was going to go in there and overthrow Roe ... most likely yes."

Sens. Charles E. Schumer of New York and Edward M. Kennedy of Massachusetts also said they had not ruled out a filibuster.

Schumer told NBC's "Meet the Press" that "questioning Judge Alito is going to be really, really important." He said he hadn't made up his mind about how to vote and "whether to urge my colleagues in the caucus to filibuster. But he's got to answer a lot of questions."

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