Alito Seen Sailing Toward Confirmation, Despite Late-Starting Hearings

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

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WASHINGTON – Is Judge Samuel Alito Jr. sailing toward confirmation?


Last week’s decision by President Bush to replace retiring Justice Sandra Day O’Connor with Judge Alito drew fire from those eager to criticize a nominee they thought could shift the court to the right. A more restrained rhetoric has taken over in recent days, however, with Senate staffers and conservative activists predicting that the ferocious battle many expected over Justice O’Connor’s seat may never flare up.


“There’s every reason at this point to think he’ll be confirmed easily,” the president of the Ethics and Public Policy Center and a former clerk for Justice Scalia, Edward Whalen, said. “Perhaps not by a large margin, but without any real fight.”


The initial response to Judge Alito’s nomination suggested that his confirmation would be hard-won, if won at all. People for the American Way, a liberal activist group that took weeks to come out against Justice Roberts, denounced Judge Alito within an hour of his nomination. Senator Schumer, of New York, said Judge Alito was chosen to placate conservatives who rebelled against an earlier nominee, Harriet Miers. Senator Leahy, the ranking Democrat on the Senate Judiciary Committee, identified yet another early obstacle for Judge Alito: his gender.


The conservative response to early Democratic criticism was pointed. Groups that kept quiet during the Miers nomination emerged with vigor, predicting a sustained liberal attack. The Committee for Justice issued a lengthy background document on Judge Alito’s most contentious rulings less than three hours after the nomination was announced. And, in a move that helped set the tone of the debate early on, others lined up colleagues of Judge Alito to discuss his judicial philosophy and demeanor.


Several sources said it was the statements by liberal judges and former clerks of Judge Alito, along with the favorable impression he made during early courtesy with senators, that deflated the early efforts by liberal activists to label Judge Alito as an extremist. Notably, a retired liberal Appeals Court judge and civil rights champion, Judge Leon Higginbotham and a liberal retired chief judge from the Third Circuit, Judge Edward Becker, strongly supported Judge Alito.


“I think what we’re seeing here is that quality counts,” Mr. Whalen said. “No one is talking anymore about what a shame it is that Alito isn’t a woman or that he’s not a Hispanic. We see someone who is fully qualified to be on the court, and that makes silly all of the race and gender preferences that were expected by some before.”


That the general sentiment had swung in favor of Judge Alito became evident, conservative activists said, when a Democrat on the Judiciary Committee who had been one of the strongest critics of Judge Roberts, Senator Durbin, of Illinois, spoke well of Judge Alito late last week. That sense was strengthened over the weekend when another Democrat on the committee, Senator Biden, of Delaware, said on ABC’s “This Week” that “his instinct” was that the Senate “should commit” to an up-or-down vote.


Another sign that Republicans are optimistic that Judge Alito will be confirmed was their muted response to the hearing schedule. President Bush had called for a Senate vote before the end of the year before the Republican chairman of the Judiciary Committee, Senator Specter, of Pennsylvania, set the starting date at January 9. After an initial tussle, Republicans relented.


Two reasons emerged yesterday for the lack of concern over the date. One was the realization that an earlier confirmation would still keep Judge Alito from ruling on significant cases set to come before the Supreme Court this year. The court has already heard oral arguments in an appeal of Oregon’s physician-assisted suicide law and is set to hear arguments November 30 in a challenge to a New Hampshire law requiring parental notification for minors seeking abortions.


Liberal activists said the apparent cease-fire over the nomination is rather the prelude to a coming battle.


“I think the reason for the relative lack of discussion at this moment is, in part, because the hearings are way off and everyone knows that the main thing that’s going on right now is the review of his record,” a vice president at People for the American Way, Elliot Mincberg, said. “I think there’s a lot of material out there that continues to raise concerns and I think most senators … are taking time to review his record carefully.”

NY Sun
NEW YORK SUN CONTRIBUTOR

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.


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