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Foes ponder next move in fight to defeat Alito

As the interrogation of Supreme Court nominee Samuel Alito ended Thursday he was not just four days closer to confirmation than he’d been at the start of this week, but the momentum had shifted markedly in his favor.
A turning point? Martha-Ann Alito weeps during the third day of the confirmation hearings for her husband Judge Samuel Alito. Charles Dharapak / AP
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As the interrogation of Supreme Court nominee Samuel Alito ended Thursday he was not just four days closer to confirmation than he’d been at the start of this week, but the momentum had shifted markedly in his favor.

Groups working to defeat Alito were naturally not agreeing with the notion that he is likely to win confirmation.

But during his hours of testimony, the nominee had not given his foes one damning sound bite to use in the anti-Alito TV ads that will run next week.

The most vivid personal image to emerge from the hearings was that of Mrs. Alito, who was apparently driven to tears Wednesday by the insinuation from Sen. Edward Kennedy, D-Mass., that Alito may have agreed with some of the bigoted statements in articles in a magazine published by a group called the Concerned Alumni of Princeton (CAP).

Alito belonged to CAP and listed the group on a job application in 1985 when he was seeking a post in the Reagan Justice Department.

Anti-Alito strategists brushed off the persistent questions from reporters Thursday about whether Kennedy’s insinuation — followed by Martha-Ann Alito's tears — had created sympathy for Judge Alito.

Shifting targets
Having grilled Alito on National Security Agency eavesdropping, the death penalty, and other topics, Sen. Patrick Leahy, D- Vt., shifted focus Thursday, arguing that senators should be worried about “whatever he said to Dick Cheney, Karl Rove and Scooter Libby when they sat down with him” during his interviews to be Bush’s nominee to replace Justice Sandra Day O’Connor.

Libby is under indictment for obstruction of justice in the investigation of the leak of the identity of CIA employee Valerie Plame.

Asked why he brought up Libby’s name in connection to Alito’s, Leahy said, “what was it with Harriet Miers, they weren’t sure how she’d vote but with him (Alito) they felt sure?”

Democrats seemed to fight much of this week’s battle in terms of proxies for Alito, asking him to defend or disavow the views of others:

  • Leahy, and last week Kennedy, attempted to link Alito’s beliefs about the presidency – sketched out in his 2000 speech on administrative agencies such as SEC  -- with former Bush Justice Department official Jay Bybee, author of the 2002 memo that suggested the president might be able to immunize from prosecution officials or soldiers accused of violating the federal torture statute.
  • Leahy and Sen. Herb Kohl D-Wisc. raised the topic of defeated Supreme Court nominee Robert Bork, whom Alito had praised in 1988, with Leahy noting that Bork, as solicitor general in 1973 carried out President Nixon’s order to fire special prosecutor Archibald Cox.
  • Sen. Joseph Biden, D-Del., grilled Alito Thursday about former Bush Justice Department official John Yoo, under whose views, “the president could invade Syria tomorrow or invade Iran tomorrow without any approval by Congress,” said Biden.
  • Kennedy suggested Alito agrees with views expressed by Northwest University law professor Steven Calabresi on the theory of the “unitary executive,” which sketches presidential power to fire administrative agency officials such as FCC commissioners.
  • Both Biden and Rep. Debbie Wasserman-Schultz, D-Fla., an anti-Alito witness before the committee, compared Alito’s membership in CAP with membership in the Ku Klux Klan, which lynched blacks in the South. “I take him at his word that he didn't know what the group stood for,” Biden told Today Show host Katie Couric. “But I'm sure required to ask him, just like me asking you, `Katie, were you ever a member of the Ku Klux Klan?’”

And more than two months after the event, Leahy and Sen. Charles Schumer, D-N.Y., still seemed peeved that Bush had withdrawn his prior nominee Harriet Miers, in response to conservative criticism.

No sharp quotable remarks
The role played in the rhetorical battle by the non-Alito targets: Miers, the KKK, Yoo, Bork, et al. partly reflected the absence of sharp quotable remarks from Alito himself.

There were questions for Alito from senators on the judge’s rulings, but, as expected, he gave no commitments on his future rulings.

Adhering to prior decisions such as the 1973 Roe v. Wade abortion decision, he said, “not an inexorable command, but it is a general presumption that courts are going to follow prior precedents.”

Yes, he had said in 1985 that “the Constitution does not protect a right to an abortion,” but today “if the issue were to come before me… I would approach the question with an open mind,” he told Committee chairman Sen. Arlen Specter, R- Pa..

The only remaining question Thursday seemed to be would Democrats mount a filibuster, which they'd need 41 of their members to sustain.

“I hope Democrats will mount a filibuster,” said Democratic strategist Roger Hickey. “On the one hand it will be a motivating factor for people to vote in November, but on the other hand, if Democrats wimp out and don’t follow up with a filibuster, there will many disappointed voters.”

Hickey said the Alito hearings showed voters that the result of the 2004 election was “it allowed Bush to appoint extremists to the bench.”

Asked whether Alito did in fact appear at the hearings as extremist, Hickey said, “He came across as a nice guy who has some very extreme views.”

A Senate Republican staffer, who spoke on condition of anonymity, said Thursday afternoon the mood among GOP senators supporting Alito was very upbeat.

“We feel very good about this,” he said, calling Alito’s confirmation “a fait accompli. There are reasons for the Democrats to get this behind them. Why drag out a loss — especially in light of what happened to Mrs. Alito?”

One strategist working for one of the progressive groups trying to defeat Alito, who spoke on condition of anonymity, said Thursday opponents may have erred in scattering their fire against the nominee on several different charges, instead of focusing all their fire on Roe v. Wade and privacy rights.

Personal issues, not legal ones
The memorable Supreme Court nomination battles have been fought in terms of personal issues, such as alleged racism and sexual harassment, rather than legal questions.

Alito might be legitimately criticized for his ruling in the 2000 Chittister case, for instance. It is one of his most important decisions on a very significant issue: state sovereign immunity from employee lawsuits seeking enforcement of the federal Family and Medical Leave act.

But the dense details of a case such as Chittister are hard for non-lawyers to understand.

Alito opponents would have to begin by explaining to a national TV audience what sovereign immunity is and why it should matter to them.

The Alito opponents' apparent lack of success raised the longer-term question of whether this highly developed form of political warfare has reached a dead-end.

Over the past 35 years, Senate Democrats  — sometimes aided by liberal and centrist Republicans — have mounted massive campaigns to try to defeat seven Supreme Court nominees appointed by four different Republican presidents.

The Democrats have defeated three of those seven: Clement Haynesworth in 1969, Harrold Carswell, in 1970,  and Bork in 1987. They came close to defeating Clarence Thomas in 1991.

At this moment it looks as if they will fall short on Alito.