[Mb-civic] A Hearing About Nothing - E. J. Dionne - Washington Post Op-Ed

[William Swiggard]

A Hearing About Nothing

By E. J. Dionne Jr.
Friday, January 13, 2006; A21

<>A listless intellectual fog had fallen over the Senate hearing room on 
Tuesday, the first full day of questioning for Judge Samuel A. Alito Jr. 
before the Judiciary Committee. As one Democratic senator strode out to 
the hallway during an afternoon break, he leaned toward me and said: "We 
have to hit him harder."

The senator was expressing frustration over a process that doesn't work. 
It turns out that, especially when their party controls the process, 
Supreme Court nominees can avoid answering any question they don't want 
to answer. Senators make the process worse with meandering soliloquies. 
But when the questioning gets pointed, the opposition is immediately 
accused of scurrilous smears. The result: an exchange of tens of 
thousands of words signifying, in so many cases, nothing -- as long as 
the nominee has the discipline to say nothing, over and over and over.

Alito, an ardent baseball fan, established himself as the Babe Ruth of 
evasion.

The headlines went to the abortion issue. Alito was pressed about his 
statement in a 1985 job application letter to the Reagan administration 
that "the Constitution does not protect a right to an abortion." It is a 
reasonable view shared by millions of Americans. Republican Sens. Sam 
Brownback (Kan.) and Tom Coburn (Okla.) were refreshingly open in their 
denunciations of Roe v. Wade .

But Alito would neither embrace nor back away from what he had said. He 
did allow that "there is a general presumption that decisions of the 
court will not be overruled." Well, yeah.

When Sen. Dianne Feinstein (D-Calif.) asked Alito if the issue was 
"well-settled in court," he offered the celebrated formulation: "I think 
that depends on what one means by the term 'well-settled.' " The 
standard dodge is that nominees can't answer questions bearing on cases 
they might later have to decide. But Democrats Feinstein, Richard J. 
Durbin (Ill.) and Charles E. Schumer (N.Y.) all noted that Alito was 
perfectly happy to speak expansively on some questions he would face, 
notably reapportionment.

Sen. Joe Biden (D-Del.), much mocked for his prolix prattling in the 
early going, actually made a pithy observation yesterday. He said that 
nominees "tend to answer controversial questions in direct proportion to 
how much they think the public is likely to agree with them."

Conservatives are right that our abortion debate is distorted because 
Roe v. Wade has forced too much discussion into the limited confines of 
Senate hearings over future judges. But that doesn't make the 
circumlocutions any more satisfactory. Conservative appointees who might 
well overrule Roe can't quite say so if they are to get the votes they 
need from Republican senators who support abortion rights and want to 
protect themselves with pro-choice voters.

That was just one of many evasions. When Sen. Patrick Leahy (D-Vt.) 
asked if "the president has the power to curtail investigations, for 
example, by the Department of Justice," Alito replied: "I don't think 
the president is above the law." A fine sentiment that didn't answer the 
question. Leahy asked yesterday if Congress could strip courts of their 
authority to rule on cases involving the First Amendment. Alito didn't 
have a view.

When Biden asked Alito about John Yoo's expansive reading of 
presidential power, Alito said he had not read the former Justice 
Department official's recent book, even though Yoo's views have long 
been well known.

And there was something odd about the gap in Alito's memory concerning 
his membership in Concerned Alumni of Princeton, a right-wing group 
whose publications said some rather unpleasant things about blacks, 
women and gays. Alito didn't remember anything, but if he did remember 
something, his membership might have been related to Princeton's 
decision to throw the ROTC off campus, even though parts of ROTC later 
returned. The first public reference I can find to the ROTC rationale 
came not from anything Alito has said but from talking points put out 
Monday by Republican National Committee Chairman Ken Mehlman.

My biggest worries about Alito are how he would rule on presidential 
power, workers' rights, civil rights and regulatory issues. Cass 
Sunstein, a University of Chicago law professor, has noted that Alito 
follows the law when it's clear, but he almost always tilts toward his 
conservative predilections when the law is less settled.

Democrats seem to be wary of mounting a filibuster. What they should 
insist upon, to use a euphemism Alito might appreciate, is an extended 
debate in which his evasions will be made perfectly clear to the public. 
If moderate senators want to vote for a justice highly likely to move 
the Supreme Court to the right, they can. But their electorates should 
know that's exactly what they're doing.

http://www.washingtonpost.com/wp-dyn/content/article/2006/01/12/AR2006011201502.html
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