January 20, 2006

CQ Press In Context - Alito Hearing Summary

Speakers: Kenneth Jost, CQ Press Supreme Court Editor
Scott Kuzner, CQ Press Interviewer

SK: Good afternoon. Today is Friday, January 20, 2006 and welcome to CQ Press In Context. I'm Scott Kuzner and today I'll be speaking with CQ Press Supreme Court Editor, Kenneth Jost, about Judge Samuel Alito's confirmation hearings which wraped up earlier this week. Alito is now waiting a committee vote and that is scheduled to take place next week on Tuesday, January 24th. Ken, first off, tell us about Alito's performance during the hearings as well as the testimonies and actions from Democrats and Republicans in the Senate.

KJ: Well, Judge Alito was given very good marks for his performance in 18 hours on the witness stand. He fielded 700 questions. Republicans said he answered them all. Democrats said he gave responses but not real answers. But in any event, Judge Alito made no serious mistakes. The senators, well, the Republicans asked very supportive questions for the most part. Some people call them softball questions but the Republicans were pretty well satisfied with themselves. The Democrats, on the other hand, tried very hard to pin Judge Alito down on several topics — I'll get to those in a second — largely, without great success. Some of the questions were seen as argumentative and contentious; others, at least, were respectful. In any event, the democrats seemed as if to score no major points.

SK: There were a number of issues raised during the hearings for Alito. Starting with abortion, how did Alito respond to that issue?

KJ: Absolutely. Going into the hearing, abortion seemed to be the number one issue. Judge Alito, in 1985, had written that he did not believe in the constitutional right to abortion. He never disavowed that statement. He simply said that was his position 20 years before this hearing. As a judge, he said he would respect the abortion rights precedence, Roe v. Wade, and the later decision, Casey. He never said, as Chief Justice Roberts said in his confirmation hearing, that he regarded the precedence as "well settled". And from the Democrats' point of view, that wasn't as far as they hoped to hear from him. On the other hand, Republicans said that he went as far as a judge could go without giving a preview of how he might rule when a case actually reaches the court.

SK: Another issue raised early on was executive power. How did Alito respond to that issue during the hearings?

KJ: It turned out that there were more questions asked about executive power than about abortion. That was somewhat surprising. But it played off the Bush administration's recent assertions of rather broad presidential power, most notably the domestic wiretapping without judicial procedures. Democrats asked the question in every possible way they could think of and to those questions Judge Alito said the president is not above the law. Republicans thought that was an adequate answer. But Democrats also wanted to hear him disavow his professed support for a theory called "unitary executive". Judge Alito had endorsed that in a speech in November 2000 right after the November 2000 elections. Judge Alito never backed off that theory. He did minimize it somewhat.

SK: Well speaking of Alito's background, did his judicial voting record become an issue at all during the hearing?

KJ: It did. It was the third most frequent set of questions but it proved to be rather diffuse. The Democrats had lots of studies and specific cases to ask, all designed to show that Judge Alito was disinclined to rule in favor of civil rights plantiffs, disinclined to rule in favor of consumers or workers, more well disposed toward corporations, and in the criminal cases, toward the government rather than criminal defendants. The Republicans actually answered two ways. They said first, you can't cherry-pick an individual case; you have to look at his whole record. But when the Democrats did produce a study of his whole record, the Republicans said you can't keep a judicial scorecard. In the end, it's not clear that Democrats scored any points on that issue either.

SK: Another issue related to his background was his relationship with Princeton University and Vanguard. Tell us a little about this.

KJ: The Princeton issue was his membership in a conservative alumni group that was generally disinclined toward admission of women and minorities to Princeton back in the 1970's and 80's. Judge Alito managed to diffuse the issue by saying, "I don't remember much about belonging to that organization," and the organization's records — which are held in the Library of Congress — showed, in fact, that he was never a speaker, never a writer, never a board member, never even a contributor. So, that issue kind of fizzled. The Vanguard issue pertained to his judicial record. He holds mutual funds with Vanguard and before he was confirmed for the Federal Court of Appeals, he promised to step out of any cases involving Vanguard. In 2002, he participated in a case that tangentially involved Vanguard. Senator Kennedy, who was chairman of the Judiciary Committee when Alito was confirmed, was very upset about that. Judge Alito eventually confessed that it was mistake, said that if he had to do it all over again he'd do it different. And besides Senator Kennedy and maybe a couple other Democrats, the issue just didn't resonate much.

SK: We should see how all this pans out next week when the committee takes it vote so we thank you for your time and we thank you for visiting CQ Press In Context.