Samuel Alito should get an up-or-down vote on his Supreme Court nomination, a Democrat on the Senate Judiciary Committee said Sunday, playing down the chances of a filibuster.
“My instinct is we should commit,” said Sen. Joseph Biden, D-Del., minimizing prospects of the Senate maneuver that would prevent final action on President Bush’s choice to replace retiring Justice Sandra Day O’Connor.
“I think that judgment won’t be made until the bulk of us have had a chance to actually see him and speak to him. But I think the probability is that (a vote) will happen,” Biden said on ABC’s “This Week.”
Other committee Democrats, however, said it was too soon to tell whether a filibuster might be necessary, citing initial concerns about Alito’s conservative record from the bench.
Bush last week selected Alito, a former Reagan administration lawyer who is currently a judge on the Philadelphia-based 3rd U.S. Circuit Court of Appeals, after White House counsel Harriet Miers withdrew her nomination amid withering criticism from conservatives.
Hearings set to begin Jan. 9
Alito’s confirmation hearings begin in the committee on Jan. 9. Some Democrats have raised the prospect of a filibuster until they get a fuller sense of his views on abortion and other social issues on which O’Connor has been a swing vote.
One case in which senators have expressed concern is Alito’s 1991 dissent in a case in which the 3rd Circuit struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses. O’Connor was an author of the Supreme Court ruling that found the notification unconstitutional.
Sen. Edward Kennedy, D-Mass., another Judiciary Committee member, said at this point he was not hearing his Democratic colleagues discuss the filibuster option.
Kennedy said he had an open mind about Alito’s nomination, although he was concerned about the judge’s record on privacy, as well as police powers and rights of the disabled. Conservatives’ support of Alito also troubled him, he said.
“The people that were so enthusiastic about knocking down Miers are so enthusiastic about this nominee. We have to find out why are they so enthusiastic this time and what do they know that we don’t know,” Kennedy said on NBC’s “Meet the Press.”
Sen. Dick Durbin, noting that senators still must review more than 300 of Alito’s opinions, said the time to decide whether to filibuster should come after Alito addresses questions during the confirmation hearings.
“Let’s give Judge Alito a clean start and not presume he is the right person or the wrong person until we see the evidence,” Durbin, D-Ill., told CBS’ “Face the Nation.”
“We need to see if he will follow the conservatism of Sandra Day O’Connor or whether he’s coming to the court with a more extreme agenda,” he said.
Sen. John McCain, R-Ariz., one of 14 centrists who averted a Senate breakdown over judicial nominees last spring, said most members of the centrist group including himself are “favorably disposed” toward Alito.
The Democrats “are making up their minds and waiting for the hearings which is entirely appropriate, ... but so far I have not seen any significant concern that might lead to the filibuster,” McCain said on “Fox News Sunday.”
Utah Sen. Orrin Hatch, Republican committee member, suggested that Democrats have no right to oppose Alito based on his conservative ideology. That is because the federal judge, who also served as a former government lawyer and prosecutor, is clearly qualified, he said.
“Ideology should not be the determination,” Hatch said. “It ought to be the practical application of the laws that exist. In this case, you’d have a rough time finding anybody who has more expertise and more ability in the law than Judge Sam Alito.”
Sen. Chuck Hagel, R-Neb., said senators have a right to know what a nominee’s judicial philosophy is in making their determination, but the decision should be based on both philosophy and qualifications.
“I don’t have any qualms about him unless something obviously comes out of nowhere. I doubt that’s going to happen,” Hagel said. “I think he represents the best of judicial prudence and style and records and qualifications.”