It was a day marked by visible emotion: withering skepticism from Democratic senators at Samuel Alito's intransigent refusal to discuss Roe v. Wade or remember the Concerned Alumni of Princeton; angry head-butting between Ted Kennedy and Arlen Specter over a subpoena for CAP's records; growing edginess from Alito himself as Democratic senators read from CAP's notoriously bigoted journal, followed by tears from Alito's wife, Martha, when he was defended by Lindsey Graham (who, the Wall Street Journal reports, coached the nominee ahead of his hearings).
Yet for all of the febrile theatrics, this was also a day of subtle revelation in which the nominee suggested for the first time just how far to the right he would take the Court. On the critical issue of abortion rights, Alito positioned himself distinctly to the right of John Roberts, pointedly declining to accept the new Chief Justice's expressed view that Roe v. Wade amounts to "the settled law of the land."
Pressed on the question by Illinois Democrat Dick Durbin, Alito would only describe Roe generically as "precedent that is entitled to respect," and declined Arlen Specter's invitation to view Roe--and its reaffirmation by Justices O'Connor, Kennedy and Souter in Planned Parenthood v. Casey-- as a super-precedent, another Roberts formulation. Alito's refusal to go even as far as Roberts led Durbin to ponder that "for thirty years, we have tried to strike a balance in this country.... But as I listen to the way you answered this question...I'm concerned."
Another crucial revelation came at the unlikely hand of Republican Senator Tom Coburn, who expressed frustration at a question avoided not by Alito but by Roberts last fall: whether the Supreme Court should ever consider other nations' laws. On Wednesday Alito displayed none of Roberts's discretion on the subject: "I don't think that we should look to foreign law to interpret our own Constitution.... I think the Framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of the countries of the world."
With this blunt declaration, Alito waded straight into a controversy more alive on today's Supreme Court than Roe. In a string of recent human rights cases, Supreme Court majorities--including Sandra Day O'Connor--have cited "evolving standards of decency" on the death penalty and gay rights. In ending the executions of juveniles and the retarded, in striking down the criminal prosecution of homosexuals, the Supreme Court in recent years has been willing to see the United States as a global citizen, citing briefs from the European Union and noting the rise of new human rights laws around the world.
Those Supreme Court majorities have faced angry dissents from Antonin Scalia. Alito's unambiguous, repeated disdain for global human rights standards marks him as a Scalia fundamentalist, sets him distinctly apart from Sandra Day O'Connor and carries profound implications for the war on terror as well as American law.
Alito's unexpected frankness on this quite current issue before the Supreme Court was a welcome relief not just from his evasion on Roe but his constantly shifting portrayal of his own most controversial statements. On Tuesday he associated his membership in CAP with its support for ROTC; by Wednesday he was contending that he listed it because it might be "relevant to a political position" with the Reagan Administration. On Tuesday his 1985 argument that Roe was unconstitutional was "a true expression of my views at the time"; on Wednesday he told Senator Charles Schumer that it was "not an attempt to set out a comprehensive view of the subject," and that his comments were mostly aimed at highlighting his work on a single case.
Alito's studied stonewalling on Roe and CAP helped to obscure a crucial difference between this hearing and any other confirmation in memory. Ever since Robert Bork went down in flames, most Supreme Court nominations--Democrat or Republican--have gone to judges with a relatively short tenure on the bench. Hearings have served as ways of filling out their record and introducing them to the Senate and the public.
Alito's hearing, by contrast, is serving to eclipse his astonishing fifteen years as a federal appellate judge; to wipe from memory a track record hundreds of cases long. At Wednesday's hearings, Democrats zeroed in on a handful of issues--CAP, Roe, Alito's theory of executive power, his participation in a Vanguard Mutual Fund case despite investments--which Alito had long been prepared to deflect with well-rehearsed technocratic answers and evasion.
Almost absent from the witness stand was the Alito of the last fifteen years--who, as the Yale Law School's Alito Project report notes, "has sought to move the law to acheive the broad philosophical purposes" articulated in that now-notorious 1985 Justice Department memo. At day's close Democrats requested a third round of questioning. Their case now depends, in essence, on calling that Alito as a witness against the genial equivocator on stage this week.