The Alito Shuffle

Cohen: Alito Hearings Will Be Passionate, But Outcome Is Set

(CBS)  Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.

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If you are going to follow the Supreme Court confirmation hearing for 3rd U.S. Circuit Court of Appeals Judge Samuel A. Alito, Jr. because you are anxious to know how it all turns out let me tell you right now: don't bother. The result is not in doubt. Barring some metaphysical implosion of law and politics, which this hapless gang of politicos is unlikely to engender, Judge Alito in the next few weeks will become the newest Associate Justice of the United States Supreme Court. On that you can make book.

But if, on the other hand, you are going to follow the Alito confirmation hearing because you are interested in the political and legal shadows it is likely to throw then you are truly in for a treat. The Alito hearing will be florid and passionate and testy and often insightful. It will be so only because Judge Alito, to his great - but temporary - misfortune, has become the vessel through which Senate Judiciary Committee Democrats - and perhaps some moderate Republicans - will be able to express their frustration with, and even outrage over, the Bush administration's startling terror law positions.

I don't buy into recent talk of a filibuster by Senate Democrats and moderate Republicans. I can understand the threat. But right now Judge Alito has the votes to be confirmed - just do the math - and the only person who can stop his ascension is the judge himself. If he is defensive and argumentative and if he talks and acts like a partisan ideologue, then I can see the mood shifting a bit in favor of a stalemate. But I think Alito is too smart to fall into that trap, and I think that the lesson of Robert Bork's catastrophic performance in 1987 is still too fresh in the minds of Alito's handlers for them to allow it to happen again. My brave prediction? Judge Alito gets fewer votes than Roberts' 78 but still gets in at around 60.

Why the closer call? Because Judge Alito starts the week in markedly weaker shape than did John G. Roberts, Jr., who sailed through the confirmation process last September. Alito is far less polished and neutral-seeming than Roberts. And whereas Roberts came off ultimately as a humble student of the law, Alito's writings, first as a government lawyer and then as a judge, suggest a far greater level of ideology and advocacy and partisan grit. For Democrats, then, there simply is more "there" there to Judge Alito - more questionable rulings and theories that warrant a far more thorough examination than Roberts received.

Judge Alito also is the victim of bad timing and circumstance. He comes to the little white table in the hearing room at the Hart Office Building on Capitol Hill as the High Court pick of a weakened president whose terror law policies have come to alarm many rational voices in the nation's legal community. A lot of very smart people, liberals and conservatives both, have raised a lot of very important questions about how this administration has been interpreting federal law, and the Constitution, in its efforts to expand presidential and law enforcement power. And, like the batter who has to face the angry pitcher who's just been hammered for a home run, Judge Alito happens to be the poor guy who has to sit there, under oath, and face the chin music before a Congress angry at its recent treatment by the White House. You might say that the judge is a stunt nominee - the guy who will get blasted for his benefactors' dubious policy choices.