After a round of opening statements on Monday, the formal interrogation of Samuel Alito by the begins Tuesday at 9:30 a.m.
Barring a disastrous performance in front of the committee, Alito will likely have at least the 51 votes he’ll need for Senate confirmation as justice of the Supreme Court to replace Sandra Day O’Connor. Even some of Alito’s opponents concede that the opposition will likely need to resort to a filibuster if they are to keep him off the court.
And if Alito wins confirmation, it will be a high point in President Bush’s second term as president. Twenty years ago, at a similar moment in Ronald Reagan’s second term, Democrats and liberal Republicans defeated Robert Bork, Reagan’s nominee to the high court.
The anti-Bork forces simplified the case against him especially in two issues that ordinary non-lawyers could understand. One was Bork’s opposition to the public accommodations section of 1964 Civil Rights Act, which said privately-owned hotels and cafes had to serve black customers as well as white ones.
The other was the American Cyanamid case, which led to a unanimous 1984 appeals court ruling by Bork and two other judges.
The question in that case was whether the Occupational Safety and Health Act could be used to penalize the chemical company for banning women of childbearing age from a plant with high levels of lead. The firm told women employees if they’d undergo sterilization they could work in that part of the plant.
Bork’s ruling in the American Cyanamid case didn’t deal with the ethics of sterilization. But in anti-Bork advertisements, his foes accused him of upholding a corporate policy of forcing women to choose between sterilization and losing their jobs.
Are there analogous issues that Alito’s enemies will use to try to defeat his confirmation? Here are five:
1) Alito's application for the job of deputy assistant attorney general in the Justice Department, submitted on Nov. 18, 1985.
Even though that job application was written more than 20 years ago, Alito’s adversaries argue it is a crucially important window into his current thinking.
In it, Alito, then working in the Solicitor General’s office preparing cases for argument for the Supreme Court, said, “I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not allowed and that the Constitution does not protect a right to an abortion.”
These positions, he said, are ones “in which I personally believe very strongly.”
Elliot Mincberg, the General Counsel of the liberal group People for the American Way, said the 1985 job application “provides a road map for Alito’s judicial record which comes out the same way on those issues that are of such great concern to the far-right legal movement.”
Sen. Charles Schumer, D-N.Y., who led the opposition to Bush’s nomination of Chief Justice John Roberts, focused on the sentences in the job application in which Alito said he personally believed “very strongly” that the Constitution did not provide for a right to abortion.
“Does he stand by those statements?” asked Schumer, in a preview of the questions he’ll pose to Alito this week. “Does he still have the same view of the Constitution? We deserve a straight answer at the hearings. Is he going to distance himself from those comments?”
2) The strip search of a mother and daughter.
In a 2004 case, called Doe v. Groody, Alito dissented from a ruling by then-Judge Michael Chertoff and Judge Thomas Ambro that four police officers should not have immunity from a damages lawsuit after a female officer conducted a physical search of a suspected methamphetamine dealer’s wife and daughter at the suspect’s house.
The family filed suit claiming the wife and daughter had been illegally searched because the search warrant only specified the suspected meth dealer, not his wife and daughter.
Alito said “a reasonable officer certainly could have believed” that the search was permissible, because the affidavit accompanying the search warrant specified searching everyone on the premises. The officers “did not exhibit incompetence or a willingness to flout the law.”
“Judge Alito says it is OK for the police to strip search a mother and her ten-year old daughter even though they’re not named in the search warrant…. That’s one I think people can relate to,” said Mincberg.
But a group of nine law school deans, including former solicitor general Kenneth Starr, wrote in their endorsement of Alito that in the Groody decision, “The issue before the court was not whether the search was proper or good policy but whether police should be faced with possible money penalties for acting reasonably on the basis of the warrant and affidavit.”
3) Shooting a boy in the back.
While serving in the Justice Department in 1984, Alito wrote a memo suggesting the Reagan administration not take part in a Supreme Court case concerning the constitutionality of Tennessee’s fleeing felon statute which permitted the use of deadly force to prevent the escape of a felony suspect.
The case involved a 15-year old boy who broke into a house at night. Police arrived at the scene and ordered the burglar to halt. When he didn’t, an officer shot him to prevent his escape.
Alito said the issue was one better suited for legislatures than for judges to decide, arguing that is “no single principle that can be used to judge when it is justified to use deadly force to stop a fleeing suspect. Instead, all such rules are based upon difficult moral and philosophical choices and a balancing of values that is peculiarly suited for legislative rather than judicial resolution.”
Mincberg described Alito’s argument as “it shouldn’t even be something that comes up under the Constitution when the police shoot a 15-year old in the back and kill him leaving the scene of a robbery.”
4) No federal ban on machine gun ownership?
In a 1996 case called United States v. Rybar, Alito dissented from two of his colleagues who upheld a federal law banning possession of machine guns.
Relying on the Lopez decision handed down by the Supreme Court one year earlier, Alito said the law “might be sustainable” if Congress found that “purely intrastate possession of machine guns has a substantial effect on interstate commerce.” But, he said, Congress hadn’t done so.
The Supreme Court’s 1995 Lopez decision had emphasized that the Constitution only gives Congress the power to regulate interstate commerce, not the power to regulate all the things that go on within a state.
5) Domestic eavesdropping by the federal government
In 1984, while serving in the Justice Department, Alito wrote a memo supporting the position held by the Carter administration and by the Reagan administration that former Attorney General John Mitchell should have immunity from lawsuits stemming from domestic national security wiretapping that he ordered in 1970.
The Supreme Court later rejected this position.
Seth Rosenthal, the legal director for the Alliance for Justice, a coalition of groups working to defeat Alito’s nomination, said the surveillance issue was part of a larger pattern of Alito being too deferential to the executive branch.
“One of the important roles the Supreme Court has played is to check overreaching by the executive branch,” Rosenthal said. “With recent revelations that President Bush has authorized spying on American citizens for national security reasons, this issue is front and center.”