Samuel Alito’s nomination to the Supreme Court is gliding toward confirmation despite a week of hearings in which Democrats tried to hobble his prospects with withering questions on abortion, presidential power and ethics.
Democrats argue that the former Reagan administration lawyer is likely to tip the court’s balance to the right in replacing centrist Sandra Day O’Connor. But with little success so far peeling away Alito’s support to be the nation’s 110th Supreme Court justice, the Democrats were noncommittal about trying to mount a filibuster on the Senate floor.
Instead, they are seeking to slow Alito’s ascension by demanding that the Judiciary Committee’s chairman, Sen. Arlen Specter, R-Pa., delay the panel’s vote a week.
Senate Democratic leader Harry Reid “is urging all Democrats to refrain from committing to a vote either for or against confirmation prior to the caucus next Wednesday,” Reid spokesman Jim Manley said.
The hearings wound toward a close Friday with testimony from law professors, former colleagues and a representative of an abortion rights group.
Kate Michelman, former president of the National Abortion and Reproductive Rights Action League, told the panel that Alito’s promise to approach cases that affect abortion rights with an “open mind” does not mean he would follow O’Connor’s model of independence.
Critic: No privacy under Alito's approach
“Justice O’Connor assesses each case with careful attention to what the law means and who it effects, for she knows that is where the essence of justice lies,” Michelman said in prepared remarks. “In Judge Alito’s approach to the law, there are no individuals, there is no privacy. And without them, there can be neither justice nor human dignity.”
Democrats want to give their caucus time to study the hearing transcripts, Manley said. Also to be considered is whether any reason exists to filibuster the nomination, but the chances of such a maneuver appeared slim.
“I don’t think he’s going to get many votes from Democrats on the committee,” Sen. Charles Schumer, a New York Democrat on the committee, told CBS’ “The Early Show.” “As for a filibuster, it’s something we’ll have to discuss. So it’s not on the table or off the table right now.”
At least two moderate Republicans in the “Gang of 14” — centrist senators who have promised not to participate in a judicial filibuster without there being “extraordinary circumstances” — have said they would not support a filibuster on Alito.
Sen. Olympia Snowe, R-Maine, “does not believe that Judge Alito warrants a filibuster,” spokeswoman Antonia Ferrier said Thursday. Sen. Lincoln Chafee, R-R.I. “has said he has not seen any extraordinary circumstances,” spokesman Stephen Hourahan said Friday.
GOP senators, both on and off the committee, praised Alito, who has been a federal appeals court judge for the past 15 years, as his testimony ended Thursday.
“I enthusiastically endorse and support Judge Alito’s nomination,” Chuck Hagel of Nebraska said. Sen. Jeff Sessions, R-Ala., noted to the judge that his high school friends “predicted you would serve on the Supreme Court one day, and I think that’s going to turn out to be a good prediction.”
A Democratic senator issued positive comment as well. “So far I have seen nothing during my interview with the nominee, the background materials that have been produced or through the committee process that I would consider a disqualifying issue against Judge Alito,” Sen. Ben Nelson, D-Neb., said.
Other senior Democrats have not said how they would vote, including three Judiciary Committee members who voted for Chief Justice John Roberts last fall: ranking Democrat Patrick Leahy of Vermont and Wisconsin Sens. Herb Kohl and Russ Feingold.
Little momentum for filibuster
Democrats face an uphill battle in finding enough votes to filibuster Alito’s nomination — the only way they can stop him. It takes 41 votes to sustain a filibuster, and there are 44 Democrats and one Democratic-leaning independent in the Senate.
Several committee Democrats made it clear they were not inclined to vote for Alito, including Schumer and Edward Kennedy of Massachusetts.
After four days of hearings, there are “even more questions about Judge Alito’s commitment to the fairness and equality for all,” Kennedy said.
The Democrats repeatedly attacked Alito’s decisions as a judge on the 3rd U.S. Circuit Court of Appeals and his writings while a lawyer for the Reagan administration — including a 1985 statement saying the Constitution did not protect the right to an abortion — and they highlighted his membership in an alumni organization that discouraged the admission of women and minorities at Princeton University.
“The evidence before us makes it hard for us to vote yes,” said Schumer, head of the Democratic Senatorial Campaign Committee.
Praise from Bush on hearings
After his testimony, Alito received a supportive telephone call from President Bush, who was visiting hurricane-damaged areas along the Gulf Coast. “I’m proud of the way you handled it,” Bush told Alito, according to White House press secretary Scott McClellan.
Democrats on Thursday made no progress eliciting information more damaging or even personal than Alito’s previous comments, despite peppering him on right-to-die cases, affirmative action, presidential power and ethics.
They also objected to a panel of Alito’s colleagues on the Court of Appeals, saying that the judicial code of ethics advises against judges presenting character testimony. They said Alito would be faced with a conflict of interest after receiving the judges’ endorsements if decisions by those judges ever end up before the Supreme Court. Leahy declined to question the panel in protest.
For their parts, the seven judges — several of whom are Democrats — told senators that Alito would make an independent and ethical Supreme Court justice who makes decisions based on how facts apply to the law.