Lessons from the Alito Hearings

Article excerpt

Little pig, little pig, let me come in," the hungry wolf called out to his potential dinner in the straw house.

"Not by the hair of my chinny-chin-chin," the little pig bravely replied.

"Then I'll huff and I'll puff and I'll blow your house in," the wolf roared. And he blew the house down.

This scenario worked well for Democrats on the Senate Judiciary Committee in 1987, when they defeated the nomination of Judge Robert Bork to the U.S. Supreme Court. But they have not defeated any Supreme Court nominee since Bork. The rise of conservative media, including television and radio talk shows, has done much to keep the hungry wolf away. So have the Internet websites, blogging, and e-mail campaigns of conservatives and pro-life activists. More helpful than anything else, though, has been the election of more pro-life members to the U.S. Senate. As many have said recently, elections do matter.

In the January 2006 Senate confirmation hearings for now-Justice Samuel A. Alito Jr., Judiciary Committee Democrats huffed and puffed as hard as they could. Alito, with enormous patience, sat and listened to them for three days, answering many of the same questions over and over again. Although the Democrats knew they didn't have the votes to stop him, some accepted poor advice from Massachusetts Senators John Kerry and Edward Kennedy to filibuster against confirmation on the Senate floor. The full Senate quickly stopped the talkathon by a walloping 72-25 vote, then confirmed Alito by 58-42. Much like the hungry wolf, the Democrats had let frustration do them in. Roaring to their latest target that "I'm coming down the chimney to eat you," they had fallen into the pot of boiling water in the fireplace.

The Democrats are not happy campers after their defeat, but they will survive somehow. Undoubtedly they, NARAL Pro-Choice America, the Alliance for Justice, and People for the American Way are trying to learn from their defeat in order to be more effective when the next Supreme Court vacancy occurs. If President Bush is able to place one more conservative on the Court within the next year or two, that should tip the balance on abortion and other key issues. Observers say another Bush nomination will trigger the "mother of all battles" over the Court's future.

Clearly, this is no time for opponents of Roe v. Wade, the Court's 1973 decision that legalized abortion, to let down their guard. They are still at least one vote short of overturning Roe, unless they can persuade Justice Anthony Kennedy to change his mind. In fact, because of the growing weight of Roe as a precedent, they cannot be sure that either Justice Alito or Chief Justice John Roberts will vote to strike it down. So they, like their opponents, must review the Alito hearings in order to find lessons for the future. In a contribution toward that goal, I will review the Roe-related performances of Judiciary Committee senators, especially ones on the pro-life side. Then I will suggest a few ways to improve the confirmation process. Finally, I'll make a few suggestions about preparing a major case against Roe.

Rating the Senators and the Nominee

Senator Arlen Specter, the Pennsylvania Republican who currently chairs the Senate Judiciary Committee, is a feisty independent. A veteran Roe supporter, he had to promise-as a condition of his election as committee chairman-that he wouldn't use a "litmus test" against Bush nominees.1 He certainly has kept his word. While undergoing cancer treatment last year, he shepherded the nomination of John Roberts for Chief Justice through the Senate. In early 2006, he ran the Alito confirmation hearings with courtesy, fairness, an occasional flash of humor, and much-needed moral support for Judge Alito and his family. After a rough day of questioning, the chairman remarked, "The crowd has pretty well emptied out, but the Alitos are all still here."2 When the long interrogation was nearly over, he complimented Alito on his "remarkable patience. …