Biography as Destiny
Judge Samuel Alito opened his Supreme Court confirmation hearing with a prepared statement saying absolutely nothing about law and everything about politics. In a few swift strokes Alito portrayed himself as a paladin in the culture wars, taking a swipe at his 1960s classmates ("I saw some very smart people and very privileged people behaving irresponsibly") and casting himself as representative of "the good sense and decency of the people back in my own community."
Like any other political candidate, Alito tried to paint an up-by-the-bootstraps story of his origins. Given his solidly middle-class upbringing--his parents two college-educated professionals, his own education at Princeton and Yale--Alito was left to borrow a working-class cloak from his immigrant father's youth, and to use his sister's career in the mostly male world of trial lawyers to paper over his own years of antipathy to feminism. It was Illinois Senator Dick Durbin who called Alito on the irrelevance of his yarn: "Just as we do not hold the son responsible for the sins of the father, neither can we credit the son with the courage of the father."
Alito will not be able to evade substantive issues for long. During most Supreme Court confirmations, senators of both parties take care to avoid early confrontation. But this is no ordinary confirmation, and this time there was no hesitation: Within moments the generally courtly ranking Judiciary Democrat Patrick Leahy--still officially uncommitted--was throwing down gauntlet after gauntlet, talking repeatedly about the "narrow faction" of Republicans who pushed Alito's nomination and Alito's "disturbing memorandum" opposing the Supreme Court's one-person-one-vote precedent. Ted Kennedy went further, challenging "the credibility of Judge Alito's statements" about his notorious 1985 job application as well as his presiding over a case involving a mutual fund in which he held investments. By the time the Democratic opening statements reached the bottom of the roster with junior committee member Russell Feingold, it was clear today's session was the overture to a fundamental confrontation over the power of the executive, privacy and civil rights--a confrontation far different from the friendly reception given John Roberts just a few months ago.
The great question mark in the Alito hearings is not from any Democrats but Judiciary Chairman Arlen Specter. Specter remains the committee's wild card. Prochoice, a friend of civil rights, in 1987 he cast a decisive vote against the Supreme Court confirmation of Judge Robert Bork. Four years later he played the other side of the street as the prosecutorial cross-examiner of Anita Hill during Clarence Thomas's confirmation. Specter announced that abuses of presidential power are foremost in his mind, and indeed went out of his way to say that the newly revealed NSA surveillance program "appear[ed] to conflict" with the law.
At the same time Specter essentially warned prochoice activists not to take his vote--or Judge Alito's position--for granted. Specter pointed out that formerly antichoice nominees Kennedy, O'Connor and Souter evolved into the Roe-reaffirming authors of Planned Parenthood v. Casey. (What Specter didn't say is that none of those three Republican-appointed judges crafted a national antiabortion strategy, as Alito did in the Reagan Administration, or boasted of their deep belief that Roe v. Wade should be overturned, as Alito did in his 1985 job application; he also might have pointed out that it was Alito's abortion-restricting ruling the Souter-Kennedy-O'Connor opinion overturned.)
When Specter, to illustrate his point, flapped an old NOW anti-Souter poster, you could read it several ways. Perhaps the lingering anger at Specter over Anita Hill still rankles; perhaps he was trying to turn down the volume of debate; perhaps, he was trying to stake out independent terrain that could enable him to oppose Alito on the judge's extreme views of executive power. Anyway, if Specter and Alito both would prefer to change the subject from reproductive rights they got little help from fellow Republicans. The committee's two junior Republicans, Sam Brownback of Kanas and Tom Coburn of Oklahoma, played Alito's nomination as a referendum on abortion, with Brownback referring to Roe as a "thicket of lawlessness." No Democrat so completely and narrowly politicized the issues at hand.
By drawing attention in his opening statement to his biography, Alito may have opening up the strongest line of attack against him. As Senator Kennedy put it, Alito's 1985 boasts about his membership in Concerned Alumni of Princeton, his anti-Roe activism and disdain for one-person-one-vote were no youthful indiscretions, but the product of a seasoned 35-year-old political lawyer. In many years since, Alito has only reinforced those committments. It is that biography--not the Depression-era struggles of his parents--which will define his chances when the questioning begins in earnest.