Until Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) gaveled the confirmation hearings for Judge Samuel A. Alito Jr. to order yesterday, the battle over Alito's nomination has been a shouting match between partisans. Whether it ever engages the public now depends on the effectiveness of Alito and his Democratic interrogators.
To the advocates on both sides, the battle is described in drastic terms. "Judge," said Sen. Joseph R. Biden Jr. (D-Del.), "this may be one of the most significant or consequential nominations that the Senate will vote on since I've been here in the last three decades."
Earlier in the day, an e-mail fundraising appeal went out from a prominent conservative under the heading "The nomination of Judge Samuel Alito is in serious trouble" -- though few believe that is the case.
The opening day of hearings signaled that Alito faces a far more adversarial process in winning a seat on the Supreme Court than did Chief Justice John G. Roberts Jr. On such issues as abortion, privacy, warrantless eavesdropping and the power of the presidency, the confluence of current events and Alito's record has given Democrats much to contest. Alito also faces greater scrutiny because he would replace Justice Sandra Day O'Connor, the court's key swing voter.
But on this nomination, as with Roberts's, there has been a clear disconnect between the zeal of activists and the detachment of the general public. Tim Hibbits, an Oregon-based pollster, said the Alito nomination falls low on the public's list of priorities. "With the exception of highly energized base voters, it's not something that's engaged people," he said.
That could change, depending on how Alito conducts himself when the questioning begins today. But it is also possible that low-voltage confirmation hearings are becoming the norm, not the exception, despite the investment of activists to turn them into surrogate presidential campaigns. Former President Bill Clinton won overwhelming confirmation votes on his two nominees, and Roberts won 78 votes last fall when he was confirmed.
Because of the implications of President Bush's clear desire to move the court in a more conservative direction, many activists have predicted a clash this year akin to those that occurred over the nominations of Robert H. Bork and Clarence Thomas -- Bork's heavily freighted in ideology and Thomas's overwhelmed by accusations of sexual harassment.
It has not happened. One reason may be because the public considers these nominees differently than do the ideologues or both sides, looking at experience and demeanor more than at ideology. Or it may be because Alito's nomination has been overshadowed by more compelling issues, such as Iraq, the cost of home heating oil and natural gas or lobbyist Jack Abramoff's plea bargain. Whatever the reason, the public has been slow to engage.
In contrast, advocacy groups have participated in a high-decibel battle, using commercials, news conferences, television debates and op-ed articles -- pouncing on every years-old memo, statement or argument from Alito or one another. Liberal groups openly opposed Alito days within days of his nomination. Conservatives, after splintering over Supreme Court nomination of White House counsel Harriet Miers, have rallied behind a man they see as one of their own. Yesterday, activists picked apart the senators' opening statements as though they were monitoring a presidential debate.
But all the rhetoric has done little to polarize the public, even in an age in which sharp divisions are common. Not surprisingly, Republicans are generally united in favor of Alito's confirmation, according to a new Washington Post-ABC News poll. More notable, given the possibility of a near party-line vote in the Senate, is that rank-and-file Democrats are almost evenly divided. The poll found that 40 percent of Democrats said Alito should be confirmed, while 39 percent said he should not. Self-identified liberals were almost as divided, with 38 percent saying they favor his confirmation and 44 percent saying they do not, with the rest undecided.
"A groundswell of opposition hasn't arisen," said Andrew Kohut, director of the Pew Research Center for People and the Press, who said his organization's most recent poll showed that the Alito nomination is attracting minimal attention. "You're going to have to really get some significant news out of these hearings to move the needle in a negative way."
Celinda Lake, a Democratic pollster, said three factors have helped defuse what many thought would be a huge fight: the holidays, the dominance of other issues, and the lack of an effective and overarching argument against Alito by Democrats.
The holiday break, she said, has worked to Alito's advantage. Rather than giving opponents time to organize, "it gave the public time to get complacent." Having heard little about Alito over the holidays, she said, many Americans have concluded, "What's to worry about?"
Ron Klain, who was a Clinton administration official, said presidents have learned from the fights over Bork and Thomas. "I think both President Clinton and now President Bush have learned lessons about how to present these nominees and how to set up these confirmation fights so as to try to defuse the opposition," he said. "That doesn't mean the opposition's necessarily going to be defused. . . . But clearly the proponents have advanced in their thinking about public presentation of nominees over where they were."
‘Any punch left’
Republican strategists also say that liberal interest groups that jumped early to oppose Alito mistakenly assume they represent mainstream opinion when, in fact, they are out of touch with much of the electorate. More Americans, these Republicans say, side with the president and conservatives in taking a dim view of judicial activism.
"This will be a real test of the left to see if it has any punch left," said Scott Reed, a GOP strategist and lobbyist.
Democratic pollster Geoffrey Garin said Alito is in a far weaker position going into his hearings than Roberts was. "Roberts sailed into his hearings with a full head of steam, and there is virtually no momentum behind the Alito nomination, with the result that senators have much more political latitude to challenge the nomination and to oppose it," he said.
But he agreed that the Judiciary Committee sessions will determine whether the Alito fight will become the kind of clash that was once predicted: "The hearings are crucial in terms of moving this nomination up on the voters' radar screens."