All The Pretty Words
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
Supreme Court nominee Samuel A. Alito, Jr.'s crucible before the Senate Judiciary Committee Tuesday was very much like the judge himself: bland, laconic, and tireless. There was precious little grand oratory, only the faintest whiff of wit, and barely any sense of drama or tension.
It's no wonder that few people had heard of Judge Alito before he was tapped by President George W. Bush to take over Justice Sandra Day O'Connor's precious swing seat on the Supreme Court.
We did not learn appreciably more about the judge than we knew before the hearing began – certainly not much more about his judicial philosophy but tellingly not very much more about his personality, either. The senators on the Judiciary Committee blew air at him, once in a while in gusts, and it occasionally appeared that the nominee was bending a bit. But he never came close to the sort of intellectual or ideological breakdown or breakup his critics were hoping for. And the hearing so far has not come close to matching the hype it had generated.
On the first day of his marathon question-and-answer session, Judge Alito came off as calm and measured and stoic and patient. If he has a majestic personality, he chose not to display it. If he has an agenda, he had the willpower not to promote it. If he has a temper, he was able to control it.
Instead, the judge droned on, answer after answer, explaining in monotone why he ruled the way he ruled in some of the controversial decisions he had authored during his 15 years as a 3rd U.S. Circuit Court of Appeals judge. Even though his role was to react to questions, he and not his inquisitors set the pace of this slow and mostly laborious day.
Judge Alito delivered, in other words, precisely what had been promised of him. On abortion rights, Judge Alito told the Committee that he would keep an open mind even as he refused to disavow his 1985 support for the demise of Roe v. Wade. On executive power, the nominee told senators that he believed that there should be limits to the president's authority, even during times of war, but then pointedly failed to delineate those limits. On the universally (but not eternally) accepted legal principle of "one-person/one-vote" he declared that he considers it "very well-settled law" but then identified some of its failings.
Sometimes these responses encouraged Republicans on the Committee. Sometimes they encouraged Democrats. But they should have encouraged no one truly interested in clearing away the fog that shrouds the image of who Judge Alito is as a judge and what he intends to do about it once he is on the Court.
Indeed, the nominee spent so much time explaining the law in empty platitudes – "no one is above the law," "our Constitution applies in times of peace and in times of war," "judges should decide the case before them," "in general courts should follow past precedent," "courts should do what the law requires," "judges must put aside their personal feelings…" – that it reminded one former jurist attending Tuesday's hearing of the way she used to talk to grade-school children when they would come to visit her court for a tour. All those pretty words, you must know, mean so many different things to so many different people that they really mean nothing at all.
Because he already has the votes to get confirmed, and because only his own words can deprive him of this goal, these bland sayings greatly helped Judge Alito get through his first day on the not-so-hot seat. Having the opportunity to repeat them over and over again helped the judge run out the clock on the session and helped him sound professorial without actually requiring him to engage in the sort of academic and intellectual debate for which his long record of court rulings cries out. Alito and Company will breeze to confirmation here if he maintains the lofty level of rhetoric by solemnly declaring, over and over again as much as he can, that the law is why it is because it is.
That is why it is so inexplicable that Committee Democrats seemed so disinterested, distracted and disjointed Tuesday. Yes, they asked a few tough questions—Sen. Charles Schumer (D-NY), near the end of the day, stood out for his doggedness on the issue of abortion rights. And, sure, they made some strong pre-question mini-speeches – Sen. Russell Feingold (D-Wis.) comes to mind. But in the end, they didn't at all press the nominee to explain himself more fully when talking about the limits of presidential power or the role of the judiciary in a time of war. They didn't at all press Judge Alito to get more specific about his views on legislative power or the scope of the Constitution's privacy rights.
Notably, there were more questions about dead-ends issues (the nominee's ethical and financial dealings) than there were about an issue that could affect all of us (the president's domestic spying program). And there were precious few questions about the nominee's position on civil rights or voting rights or workplace rights. It's possible that the judge might also have stonewalled when questioned extensively in these areas. But it's also possible that he might have offered some analysis or perspective in these areas that would have helped round out his form for a nation that is only mildly aware that this one man is perhaps weeks away from fundamentally altering the balance of power on the Supreme Court.
Over and over again, Democratic Senators led Judge Alito to the brink of insightful dialogue only to fail to ask that one additional question that might have pushed him over the edge into true candor. In many ways, these same senators went easier on Judge Alito than they did on Judge Roberts – and I'm fairly sure no one would have taken that bet last week. In those rare cases when Committee Democrats were able to get Judge Alito to get specific, he got so specific about the details of his ruling in prior cases that his responses didn't generate any memorable sound bytes that might sway public opinion. When they got down and dirty, in other words, they were so far down into the mire of legal jargon that the nominee's points were lost in the mud.
Judge Alito was supposed to be a weaker nominee than his predecessor, John Roberts. He was supposed to be facing a more hostile contingent of Committee Democrats who were said to have more ammunition with which to work against him. He was billed as a guy who could get defensive, or argumentative, or downright impatient. So far, none of those predictions have come true. All we really have learned for sure about the judge is that he has mastered the fine art of appearing to say something profound without really saying anything at all. And all we really have discovered about the Democrats on the Judiciary Committee is that their bark Monday was far worse than their bite today.