A Bid To Delay Vote on Alito In the Works
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WASHINGTON – Democratic efforts to block Supreme Court nominee Samuel Alito flopped during three days of questioning before the Senate Judiciary Committee this week, but a document obtained by The New York Sun suggests that a strategy to delay confirmation for political purposes could be in the works.
The language of the document, which is not signed, suggests it was prepared by a Republican staffer in response to a behind-the-scenes plan by Democrats. It notes that the committee’s Republican chairman, Senator Specter, of Pennsylvania, already has given the minority party an additional month to consider Judge Alito’s record and that Republicans had half as much time to consider the last Democratic nominee, Justice Ginsberg.
“When Chairman Specter granted the Democrats this extra time, it was widely understood that, in return, Judge Alito would receive an up-or-down vote by January 20,” the memo said. “Now the Senate Democrats are threatening to keep Judge Alito bottled up in committee until January 25th and postpone his up-or-down vote indefinitely.”
Democrats angled all week for a reason to delay a vote on Judge Alito, but came up short. Senator Kennedy, a Democrat of Massachusetts, made a dramatic push Wednesday by demanding that Mr. Specter subpoena the records of a conservative alumni group to which Judge Alito belonged. Some members of the group, Concerned Alumni of Princeton, are said to have opposed the admission of minorities and women to the university.
Instead, Mr. Specter contacted the owner of the documents and secured permission for their review without a subpoena. Mr. Specter reported at the beginning of yesterday’s testimony that Democratic and Republican staff found no mention of Judge Alito in the files. By late Wednesday, Mr. Kennedy’s last-minute effort to tar the nominee as a bigot had fallen flat.
Democrats shifted gears yesterday, focusing their attack on substantive legal issues. The ranking Democrat on the committee, Senator Leahy, of Vermont, probed Judge Alito for his views on presidential authority. Several other Democrats, including Senator Schumer, of New York, followed suit. Mr. Schumer concluded his questions with a brief statement in which he indicated he will vote against the nominee.
“They had a strategy, and then they pivoted,” one Republican strategist said. “But I think they pivoted too late and hit the wall. They just never got any momentum.”
Democrats were running out of options as the hearing drew to a close. Senator Feinstein, a Democrat of California, said Wednesday that she did not see any reason to attempt a filibuster. Senator Nelson, a Democrat of Nebraska, said yesterday that he had not seen anything that he would consider “a disqualifying issue against Judge Alito.” Mr. Nelson is one of several so-called “red state Democrats,” or senators from states that went for President Bush in the last election.
Mr. Specter has said he wants a vote on Tuesday, but Democrats could request that a committee vote be held up for a week. The Senate has not held up a committee vote on a Supreme Court nominee since 1971. Republican staffers said last night that Democrats are looking to broker a deal with Mr. Specter that would allow them to delay a vote in committee until next Thursday without exercising the one-week holdover. That would postpone a vote by the full Senate until after Mr. Bush’s State of the Union address at the end of the month – depriving the president of an applause line in his speech.
Democrats could further delay a vote in the Senate by exercising an option for 100 hours of floor debate. Such a delay could benefit Democrats on three fronts: It would mark a show of force heading into the 2006 midterm elections, complicate the Supreme Court’s current calendar of cases, and strengthen the hand of Democrats in consultations with the White House over potential future judicial nominees. A slate of nominees is expected to be announced this spring.
Mr. Bush nominated Judge Alito on October 31 to replace Justice O’Connor, a swing vote on contentious social issues such as abortion, the death penalty, and affirmative action. Democrats fear the 55-year-old federal appeals court judge would tilt the court rightward on these issues, but were unable to build a case against his record in three days of questioning.
The issue now, Republicans say, is how many votes Judge Alito will pick up in the Senate. The president’s last nominee, Judge John Roberts, tallied 66. Republicans say any more than 60 for Judge Alito would give conservatives greater leverage in advancing a conservative nominee in the event of another opening on the bench during Mr. Bush’s second term. Any fewer than 60 could strengthen the hand of moderates.
Additional details about the last day of testimony leaked out late in the day. According to multiple sources, a former colleague of Judge Alito’s from the Court of Appeals, Judge Timothy Lewis, was expected to testify about favorable comments a liberal icon of the federal appeals court, Leon Higginbotham, had made about Judge Alito before his death. Republican senators were told that Mr. Lewis would not be mentioning Judge Higginbotham because Democrats had threatened to call his widow as a witness if he did.
Republicans are not celebrating yet. Many still remember 1991, when a vote on the nomination of Clarence Thomas was recalled from the Senate following allegations of sexual harassment by one of his former assistants, Anita Hill.