The Nine [175]
Bad as Alito’s performance was, that of his Democratic inquisitors was worse. Joseph Biden of Delaware resembled a parody of a bloviating politician, talking for twenty-four of the thirty minutes alloted for his initial questions. Ted Kennedy, the Massachusetts veteran of nineteen Supreme Court confirmation hearings, peppered Alito with a long series of manifestly unfair questions about his participation in a case involving the Vanguard mutual funds, in which the judge had invested. (Alito recognized his error and promptly recused himself in a case of such minor significance that it could not have affected his own portfolio.) Kennedy did annoy Alito by asking him about his membership in a group called Concerned Alumni of Princeton, which had conducted distasteful protests about coeducation and affirmative action at the college. But Alito’s role in the group was minor, and he diffused the issue by saying he was merely supporting the return of ROTC to the Princeton campus. Other Democratic senators made halfhearted attempts to engage the nominee on such varied issues as separations of powers, the environment, and law enforcement. Alito dodged with impunity.
In a crowning absurdity, on the third and next-to-last day of Alito’s testimony, Lindsey Graham decided to make a theatrical rush to the nominee’s defense. Graham mocked Kennedy’s line of attack and asked if Alito was a “closet bigot,” then expressed sorrow that Alito’s family “had to sit here and listen to this.” A moment later, Alito’s wife, Martha-Ann, burst into tears and rushed from the committee room. Her reaction was certainly peculiar, since it came during Graham’s ostentatiously sympathetic questioning. Even though there was no reason to think she staged an onset of the vapors, the day’s news focused on her tears, much to the nominee’s benefit. Any momentum in the Democrats’ direction disappeared.
The final vote in the committee, held on January 24, went along party lines, 10–8 for Alito’s confirmation. Senator John Kerry called for a filibuster against Alito, but he did so while on his trip to Davos, Switzerland, signaling a somewhat less than intense focus on the Supreme Court vote. (In a deft bit of mockery, Republicans assailed Kerry for politicking from a ski resort.) Few of Kerry’s colleagues joined his call to arms. When the time came for a vote on the Senate floor, on January 31, Alito’s opponents mustered forty-two votes against him—more than the forty needed for a filibuster. But many of the senators voting no made clear that they would not support a filibuster, so the fifty-eight votes in Alito’s favor amounted to a comfortable margin of victory.
Alito joined the Court almost four months to the day after Roberts, and the two of them struggled to keep up with the sudden onslaught of cert petitions and oral arguments. Their distinct coping mechanisms reflected the modest but real differences between them. Roberts immediately endeared himself to the loyal and long-serving Supreme Court staff by keeping on Rehnquist’s secretaries and some of his law clerks; he brought others with him from the D.C. Circuit. In recent years, some of the conservative justices on the Court had begun hiring slightly older law clerks who had both completed the customary appellate clerkships and spent some time in the Bush Justice Department. Alito took this practice to an extreme, hiring as his first clerk Adam Ciongoli, a thirty-seven-year-old senior vice president of Time Warner who had recently completed a two-year stint as one of John Ashcroft