The Nine [174]
Neas’s protest drew a tepid response. Unlike Miers, Alito had a network of friends and former law clerks (some of them Democrats) who knew him well and were only too happy to give public testimonials in his behalf. In addition, Alito’s impeccable credentials—from his sterling academic record to fifteen years on the federal appellate bench—made it impossible for anyone to oppose him on the ground of his qualifications. (The American Bar Association screening panel unanimously found Alito “well-qualified.”) The only reason to vote against him—and it was the focus of PFAW’s effort—was that he was simply too conservative and would vote to overturn Roe v. Wade. But on this point the difference between the parties was manifest.
The Democratic base did not control its members the way the conservatives controlled the GOP. Moderate Democrats tended toward the center and so were unwilling to take up a filibuster. Alito’s handlers in the White House immediately sent him to meet with members of the Gang of 14, and the visits had the desired effect. Moderate Democrats like Ben Nelson of Nebraska responded to Alito neutrally to positively, and Republicans like Mike DeWine of Ohio and Lindsey Graham of South Carolina said they would invoke the nuclear option if the Democrats tried to filibuster. As DeWine observed accurately, “This nominee should not have shocked anyone. George Bush won the election.” By the time Alito’s public testimony began on January 9, 2006, the possibility of a filibuster had faded; his confirmation appeared all but assured.
“During the previous weeks, an old story about a lawyer who argued a case before the Supreme Court has come to my mind, and I thought I might begin this afternoon by sharing that story,” Alito said when he first addressed the senators. “The story goes as follows. This was a lawyer who had never argued a case before the Court before. And when the argument began, one of the justices said, ‘How did you get here?’ meaning how had his case worked its way up through the court system. But the lawyer was rather nervous and he took the question literally and he said—and this was some years ago—he said, ‘I came here on the Baltimore and Ohio Railroad.’ This story has come to my mind in recent weeks because I have often asked myself, ‘How in the world did I get here?’ ” This leaden tale, which was greeted with mystified stares, turned out to be a fair augury of the testimony that followed. Alito was a dreadful witness in his own behalf—charmless, evasive, and unpersuasive.
In response to questions about his 1985 job application, Alito essentially dismissed the document. “When someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues,” he said. As for his current feelings about Roe, “I would approach that question the way I approach every legal issue that I approach as a judge, and that is to approach it with an open mind and to go through the whole judicial process, which is designed, and I believe strongly in it, to achieve good results, to achieve good decision making.” Alito repeatedly declined to express a view about whether Roe should be overturned. Thus, under the peculiar standards of contemporary political discourse, all eighteen members of the Senate Judiciary Committee were expected to—and did—take a stand on Roe during their campaigns; but the only people who actually have a say on Roe, future justices, were allowed to refuse to answer.
Alito’s hearing came shortly after the New York Times disclosed that the Bush administration engaged in extensive warrantless wiretapping of phone calls to or from outside the United States. Going back to the Reagan years, Alito’s record suggested that he took an expansive view of executive power, though, characteristically, he declined to say much on the subject during the hearings.