January 9, 2006

CQ Press In Context - A Preview of Judge Alito's Confirmation Hearings

Speakers: Kenneth Jost, CQ Press Supreme Court Editor
Scott Kuzner, CQ Press Interviewer

SK: Good morning. It's Monday January 9, 2006 and welcome to CQ Press In Context. I'm Scott Kuzner and I'm here with CQ Press Supreme Court Editor, Kenneth Jost. Today I'll being speaking with Ken about what to expect during the Senate confirmation hearing process for Judge Samuel Alito, who some legal experts say could tip the Supreme Court's balance of power rightward if confirmed by the Senate. Ken, first off, what's the political context of Alito's confirmation hearing?

KJ: Well, Judge Alito, if confirmed would replace Justice Sandra Day O'Connor on the Supreme Court. O'Connor has been a swing vote on any number of issues most notably abortion and affirmative action in her 25 years on the bench. So both sides, liberals and conservatives, understand that this is a very critical seat on a closely divided Supreme Court. That's going to make the hearings very contentious almost from the outset. Republicans have a majority on the Committee, 10 Republicans to 8 Democrats; they have a majority in the Senate, 55 Republicans, 44 Democrats and 1 Independent. We can expect very close questioning of Judge Alito as soon as the Senators have finished their opening statements and Judge Alito himself makes his opening statement.

SK: Will Alito's professional background particularly his experience in the Justice Department be an issue during this hearing process?

KJ: Well Judge Alito is universally acknowledged to be intellectually, you know, top rate. A graduate of Princeton, Yale Law School, the American Bar Association gave him its highest rating, "well-qualified," and so his professional qualifications for the seat are not at all disputed. On the other hand, his record at the Justice Department during the Reagan Administration and his 15 years on the bench as a member of the 3rd Circuit Court of Appeals in New Jersey will be very closely examined especially by Democrats who view that record as too conservative.

SK: Which activist groups have taken a stand against Alito's nomination and will that opposition continue or intensify during the hearing process?

KJ: Oh absolutely. Two main groups: People for the American Way and Alliance for Justice have served as coordinators for the coalition of liberal interest groups that have opposed the nomination almost from the outset. You have abortion rights groups in that coalition, you have civil rights groups like the NAACP and the NAACP Legal Defense Fund, you have environmental organizations like the Sierra Club, other women's rights organizations; they all say that Judge Alito would shift the Court to the right in a very significant way and in a long-lasting way. On the other side, conservative organizations have not been quite as visible with the exception of the Christian Right which on the eve of the hearings broadcast a rally for Judge Alito to other Christian churches around the country. There have been some ads; the liberal groups depict him as too conservative, and the conservative groups depict the liberals as essentially misleading, giving a misleading portrait of Judge Alito's character and record.

SK: Well with that said, are we set for a highly contentious confirmation battle and is a filibuster likely to be presented by Democrats to block the nomination?

KJ: It will be contentious for sure. There will be very close questioning of Judge Alito in at least three key areas. First is abortion; he wrote a letter, a job application in 1985 in which he said that he disagreed with the Supreme Court's decision recognizing a constitutional right to abortion, in that same letter he criticized other decisions including the "one man, one vote" decision, including rulings about affirmative action and liberal rulings on criminal procedure. So those will be closely examined. As a judge, his record is consistent with the portrait that he painted of himself in that job application. He's been strongly inclined to favor law enforcement in criminal cases; he's been strongly inclined to support corporate defendants in civil cases; he's been hard on civil rights plaintiffs and in one important area, federal power, he has viewed congressional power as narrower than recent Supreme Court precedents. A new area emerged just in December when it was disclosed that President Bush had approved this secret domestic foreign intelligence gathering. That put into focus Judge Alito's views on executive power and on that issue he's been a very strong advocate of very broad view of presidential power. He hasn't had any cases on that issue, but a speech that he gave to the Conservative Federalist Society of 2001 laid out his position and he'll be closely questioned about that too.

SK: Ken, finally what are the prospects of Judge Alito's nomination?

KJ: Well he goes into the hearings an odds on favorite since the Republicans hold 55 seats and they held party-line very well during most of these judicial confirmations under President Bush. The Democrats will look for some answers that can undermine that party support primarily on abortion perhaps secondarily on executive power. If the Democrats can't pick up no-votes from some of those Republicans, then they'll be forced to consider whether or not to try to filibuster the nomination on the floor of the Senate. To hold a filibuster they'll have to have 40 votes, or put differently to overcome a filibuster Republicans will have to have, marshal 60 votes. Right now I think most people expect Judge Alito to be confirmed but not by the same margin that Chief Justice Roberts gained.

SK: And we'll see how this all plays out as the hearings begin today, so we thank you for your time once again Ken. And we thank you for visiting CQ Press In Context.