Same Planet, Different World
Attorney Andrew Cohen analyzes legal issues for CBS News and CBSNews.com.
There were times Monday in Room 216 of the Hart Office Building when it seemed that there were two nominees to the United States Supreme Court. Republican senators on the Judiciary Committee mostly lauded Judge Samuel A. Alito, Jr. as if he were a paragon of justice and fairness. Democratic Senators on the Committee mostly blasted the appeals court jurist as a heartless ideologue who never met a conservative cause he didn't rush to embrace.
There also were times Monday during the latest confirmation battle when it seemed that there were two different Constitutions and two different systems of government operating today in the United States. Republican committee members spoke at great lengths of a static Constitution which cemented into place a very limited role for judges in the role of governance. Democratic committee members described instead a Constitution with built-in flexibility and the need for a strong judiciary capable of performing its checks and balances over the other two branches, especially in a time of war.
Of course, the truth about Judge Alito, and the Constitution, lies somewhere in the middle of the two political and legal extremes on display Monday, hour after laborious hour, during the first-round of Senate speechifying in what promises to be a big week for blowhards. As a 3rd U.S. Circuit Court of Appeals judge, the nominee himself is used to listening to people drone on long after they are being listened to. So it probably wasn't as hard for him as for others to sit there, at that small, red-clothed table in the middle of the room, and hear the senators talk through him at each other and at the American people.
When the Judge finally got his chance to speak, late in the afternoon, he displayed precisely the sort of brevity and linguistic precision that have marked his professional career. Looking very much both like a former prosecutor and a pointy-headed judge, his tie not quite right, his suit not quite perfect, Alito appeared very nervous at first. Talking softly, his voice catching a bit, he told a lame lawyer's joke, the kind you hear at bar association functions across the country, before launching into the brief story of his life. "I am who I am," he began, "because of my parents."
The story of Judge Alito's life — his rise to prominence from humble beginnings — is a wonderful one, full of valuable lessons, great optimism and loads of gritty character and hard work. It is thus an American story, which is why Alito's supporters want him to repeat it as often as he can and why his detractors are willing to stipulate to it in order to get to the substance of the hearing. I thought Alito would go on and on about his life and the values it inspired in him. He did not. I thought he would offer a spirited defense against some of the nastier charges against him. He did not. I thought he would provide a comprehensive view of his judicial philosophy so as to frame the debate for the rest of the week. He did not.
He offered instead only this: "The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge can't think that way. A judge can't have any agenda, a judge can't have any preferred outcome in any particular case and a judge certainly doesn't have a client. The judge's only obligation — and its a solemn obligation — is to the rule of law. And what that means is that in every single case, the judge has to do what the law requires."
The reason that doesn't tell me anything is because it reads like a paragraph from a judge's manual on what to say when asked about judging.
Judge Alito's remarks were pointedly short and lacking substance. Why? My guess is that he feels more comfortable in the give-and-take of a question-and-answer session than he does making speeches to the politicians whose votes he is trying to court. My second guess is that he feels confident about his confirmation chances — and he should — and therefore figures the less he says the less chance he has of offending someone. We'll hear much more from the judge on Tuesday and Wednesday, when the questions are specific and when he gets his intellectual and competitive juices flowing.
So that left us Monday mostly with the politicians, 18 in all, who reminded us how they have mastered the art of saying over and over again that which does not really need to be said even once. There were moments of high hypocrisy. For example, after blasting special interest groups whom, he said, "want judges who will impose their liberal agenda on the American people," Sen. John Cornyn, R-Texas, almost immediately declared his hope that Judge Alito would make it to the Supreme Court to "persuade" his "colleagues" to better endorse the Senator's conservative agenda, especially on the issue of religion in public life.
There were moments of welcome candor. Sen. Lindsay Graham, R-S.C. said aloud what almost everyone in this wood-paneled room was thinking when he told Judge Alito that "everyone knows you are a conservative," but precisely the type of conservative that President Bush said he would nominate if reelected in 2004. "Elections matter," Graham told the room, and the Senate's advise and consent role in determining judicial nominations "means anything you want it to mean ... that's politics." If the other senators were as blunt as Sen. Graham the hearing indeed would be one for the ages.
But so far it is not. Many of the Senators said precisely the same things to Judge Alito that they said to Judge John G. Roberts, Jr. last September. And Judge Alito said in his brief opening remarks a few of the things that Roberts himself said. The taut script held true to form today. It may be a different story tomorrow, when the questions and answers begin, and the interaction between inquisitor and respondent is far less rehearsed.