WASHINGTON — After weathering 18 hours of grilling before the Senate Judiciary Committee, Samuel Alito appeared all but certain to be confirmed to the U.S. Supreme Court.

Alito, a New Jersey native who has served for 15 years on the 3rd Circuit Court of Appeals, was nominated by President Bush last fall to replace retiring Justice Sandra Day O’Connor. Throughout his four days of hearings beginning Jan. 9, Alito withstood attacks on both his judicial philosophy and his character from the eight Democrats on the committee.

At one point on Jan. 11, after repeated hints by Democrats that Alito had behaved unethically on the bench and was biased against women and minorities, Alito’s wife, Martha-Ann Bomgardner, left the hearing room in tears.

“I think that Alito displayed a real judicial temperament in the face of a lot of caustic and at times improper questioning on his character,” said Sen. Sam Brownback, R-Kan., in an interview with the Register. “It was way over the top on character issues.”

Brownback asserted that despite numerous questions about ethics and Alito’s views on executive power, abortion was the only real focus of the interrogation, with more questions dedicated to the controversial Roe v. Wade decision than to any other topic.

“That’s what’s at the heart of this,” said Brownback.

Under intense questioning throughout the hearings, Alito did not distance himself from a 1985 statement on abortion that he had made in a memo while serving as an assistant to Solicitor General Rex Lee during the Reagan administration.

“The Constitution does not protect a right to an abortion,” Alito wrote 20 years ago. When asked about this, Alito said that the memo accurately reflected his views at the time, but he declined to share his current views on the topic. He also resisted stating that Roe is “settled law,” explaining that abortion-related litigation is currently before the Supreme Court.

“I would approach that question the way I approach every legal issue that I approach as a judge,” Alito said in response to a question from Sen. Richard Durbin, D-Ill., a staunch supporter of legalized abortion. “That is to approach it with an open mind and to go through the whole judicial process.”

A spokeswoman from NARAL Pro-Choice America did not respond to press inquiries, but the group’s president, Nancy Keenan, released a statement that said, “Samuel Alito did not refute his record of opposition to Roe v. Wade. He did not state whether he believes that the right to privacy includes a woman’s right to choose.”

“I think that probably is heartening to some who were concerned about his view of abortion,” said Joseph Cella, president of Fidelis, a Catholic group that has worked on behalf of Alito’s nomination. “I think Alito has been very forthright.”

Personal Attacks

Alito also fielded several questions about the Bush administration’s use of the National Security Agency to spy on American citizens communicating with suspected terrorists overseas. On this topic, he resisted giving a direct answer as to how he would rule if a case involving executive spying power came before him.

If abortion was the most substantial topic of the hearings, the most visible part consisted of the allegations that Democrats launched against Alito’s professionalism and personal integrity.

“The personal stuff was ugly, and everyone knew it was ugly,” said Sean Rushton, executive director of the pro-Alito Committee for Justice. “Alito’s wife crying sort of punctuated how ridiculous the Democrats’ behavior was.”

Democrats spent much of the three-day interface with Alito, which tallied some 700 questions, attacking the judge for his failure to recuse himself from a 2002 case involving Vanguard, an investment company that manages some of his personal assets.

During his 1990 confirmation hearings for the 3rd Circuit, Alito had told the judiciary committee on a written questionnaire that he would recuse himself in cases involving Vanguard, even though he had no financial stake in that company itself and was not, strictly speaking, required to do so.

But in 2002, Alito sat on a panel that decided a case tangentially involving Vanguard. After the panel returned a unanimous decision in the case, Alito was notified of his potential conflict of interest, and he recused himself and asked for the case to be retried without him. Again, a unanimous decision was returned.

Judiciary committee Democrats — particularly Sen. Edward Kennedy, D-Mass. — also questioned Alito over his membership in a group called Concerned Alumni of Princeton. Alito had noted his membership in Concerned Alumni of Princeton in 1985, when he applied for another political appointment in the Justice Department.

Concerned Alumni of Princeton was formed in reaction to the liberalization of Princeton’s campus. The group’s magazine, Prospect, published articles that criticized affirmative action programs and the admission of women to the university.

Alito distanced himself from these writings, insisting that he had only joined the group to protest attempts to banish the ROTC from Princeton’s campus, and that he had no substantial involvement with the group after he graduated from the Ivy League school in 1972.

“Since I put it down on that statement, then I certainly must have been a member at that time,” said Alito. But if I had been actively involved in the organization in any way, if I had attended meetings, or been actively involved in any way, I would certainly remember that, and I don’t.

Kennedy was incredulous during the hearings.
“I have to say that Judge Alito — that his explanations about the membership in this, sort of, radical group, and why you listed it on your job application, are extremely troubling. And, in fact, I don’t think that they add up,” he said.

A search through the documents of the group’s founder confirmed Alito’s account. Judiciary Committee Chairman Sen. Arlen Specter, R-Pa., announced on the final day of Alito’s testimony that they contained nothing relevant to the hearings.

“The committee staff reviewed more than four boxes of documents from the personal files of William Rusher concerning CAP,” said Specter. “Judge Alito’s name never appeared in any document.”

Jan. 20 Vote

As hearings wrapped up Jan. 12, representatives from the People for the American Way, which has been critical of Judge Alito, declined to be interviewed for this article.

The judiciary committee, which consists of 10 Republicans and eight Democrats, was expected to vote on the Alito nomination by Jan. 20, with debate and a vote on the Senate floor coming shortly thereafter.

If the nomination passes out of committee, Democrats’ final chance to stop Alito is a filibuster — a parliamentary tactic that can only be stopped by a vote of 60 senators. But in the event of a filibuster, Senate Majority Leader William Frist, R-Tenn., has threatened to end debate with a simple majority through a de facto rule change known as the “nuclear option.”

“I do expect a party-line vote in the committee,” said Brownback. “And there’s still the potential that the Democrats filibuster.”

In contrast to the hearings for Chief Justice John Roberts last summer, during which abortion advocates held daily street protests and media events, groups such as NARAL and the National Organization for Women failed to hold even a single public event during the Alito hearings. A spokeswoman for NOW denied that this was a result of a lack of volunteers, explaining instead that the group made a decision to focus on speaking with lawmakers individually rather than appealing to the public with demonstrations.

Pro-Alito demonstrators, on the other hand, carrying bright red “Confirm Alito” signs, assembled outside the Senate’s office buildings every day of the hearings.

The day before hearings began, Alito was spotted attending Mass with his family at Blessed Sacrament parish in Alexandria, Va. If confirmed, Alito would be the fifth Catholic on the Supreme Court today, along with Roberts and Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy. It would mark the first time in history that the U.S. high court has had a Catholic majority.

David Freddoso writes

from Washington, D.C.