Confirmation and Crisis
It's easy enough, looking over the last week of confirmation hearings, to decide that Senate Judiciary Committee Democrats never really laid a glove on Samuel Alito. The hearings exposed no scandalous misbehavior such as that alleged against Clarence Thomas; the nominee kept his tone cool and technocratic, without the blundering arrogance that made Robert Bork such a fat target. By week's end Alito's numbers both in the Senate and with the public looked daunting.
But the truth is, this was a profoundly revealing hearing both about Alito himself and the political dynamic yet to play out in his confirmation--and the story is not yet over.
I have followed every Supreme Court confirmation since 1991 virtually word for word. I cannot remember a hearing in which issues of fundamental constitutional philosophy were poked, prodded and dissected with such persistence--and not just by Democrats. The power of the presidency, the rights of women, the legacy of Brown v. Board of Education, international law, the death penalty: All were on the table, all pressed with an urgency unlike any the Senate has seen in years.
And it's for a simple reason: This is the first confirmation to transpire in the midst of a full-blown constitutional crisis--with the balance of the Supreme Court itself part of that crisis, along with the NSA domestic spying scandal, the confrontation between the President and Congress over torture, and the CIA leak investigation.
That constitutional crisis is why the politics of Alito's confirmation do not end with this week's hearing. The judge himself made that certain. Over the last several days I have described Alito's clear indications in his testimony that on sexual privacy, the power of the executive, even the authority of Congress, he appears at odds even with the conservative mainstream.
On abortion rights alone, Alito--as Harvard's Lawrence Tribe pointed out on Friday--"dramatically misstated the current state of law." As Tribe pointed out, Alito described the Supreme Court's crucial 1992 reaffirmation of Roe in Planned Parenthood v. Casey--a case on which Alito himself had ruled--as hinged on the principle of stare decisis, the stability of precedents. In fact, as Tribe pointed out, Casey set out a second principle, argued with clarion passion by Justices O'Connor, Souter and Kennedy: women's liberty. As Tribe put it, "The woman's liberty is important, special, not just like the right to fix prices"; and "in the descriptions that you heard from Judge Alito with respect to the issues in Roe, did he confront the question, does he, too, believe that that liberty is special?"
It was, in fact, on Casey that the first sense of the human impact of Alito's jurisprudence made itself felt in the Senate committee room. It happened during the testimony of Kate Michelman of the National Abortion Rights Action League. I have listened to Michelman testify in Congressional hearings for years, but this was different. She was describing how in the pre-Roe years she was abandoned by her husband, found herself pregnant and cleared the hurdles for an abortion. "I was awaiting the procedure when a nurse arrived to tell me that state law imposed yet another humiliating burden. The government required me to obtain my husband's consent. I was forced to leave the hospital, find where he was living and ask him to give me his permission."
If Judiciary Democrats can be faulted for their performance, it may be for failing to make such a human connection sooner. A judge, by profession adept at the fine points of legal theory, Alito was a smooth sparring partner over such abstractions as reapportionment or the unitary executive. What he never conjured in his testimony, and never elaborates in his opinions, are the human consequences of the deportations, the incarcerations, the machine gun sales he championed. The scandal of Alito is not just what is in his rulings but what is not, and that was missing as well from most of the Democrats' attempts to corner Alito on his philosophy.
But this hearing, it must be said, was never likely to derail Alito. With the exception of Chairman Arlen Specter, Republican members all fall solidly in the party's right wing, and it would have taken absolute evidence of a felony to erode their support.
Politically, the questions are precisely the same as they were going into the hearing: Will Democratic anti-Alito unity hold, particularly under pressure of a filibuster? And what about moderate Republicans who may have qualms?
Senate Democratic leader Harry Reid has kept his powder dry all week, finally moving in Friday to slow down a Judiciary vote until after his caucus meets Wednesday. One intriguing portent: Connecticut Senator Joseph Lieberman, the social conservative who voted for John Roberts, has lately hinted at the possibility of an Alito filibuster, and described some of Alito's views as "extreme." That's a potent adjective in the hands of a conservative Democratic leader, one of the Gang of Fourteen pledged to avoid filibusters in all but extreme circumstances.
As for the GOP, Alito's testimony made it clear that he poses the greatest challenge to moderate Republicans since the Nixon impeachment. Once upon a time, moderate and reform-minded Republicans--with names like Weicker, Brooke, Javits, even occasionally Prescott Bush (the best friend Planned Parenthood had in Congress)--were the Senate's constitutional conscience, beholden to neither Democratic machine bosses nor far-right ideologues. They were purged in the Reagan years but in recent months, with the exhaustion of the Bush Administration, the embers of that reform Republican tradition have shown signs of life: Specter, Chaffee, Snow, Collins, joined increasingly by the restive McCain and others.
Could Alito win without those four or five or six uneasy Republican votes? Perhaps; probably. But if the Alito confirmation hearings were a test of Democratic strategy, the Alito vote to come is a test of moderate Republican integrity and mettle.