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Published: Monday, 1/9/2006

Senate ready to open pivotal Alito hearings

BY MICHAEL McGOUGH
BLADE WASHINGTON BUREAU

WASHINGTON - In the 10 weeks since he was nominated to replace Justice Sandra Day O'Connor on the U.S. Supreme Court, Judge Samuel Alito has been praised by his supporters as a "lawyer's lawyer" who takes each case as it comes and denounced by critics as an ideologue who would move the court dramatically to the right.

Today, after secret rehearsals known as "murder boards," Judge Alito finally will speak for himself at confirmation hearings before the Senate Judiciary Committee, where he has been warned to expect even more intensive questioning than Chief Justice John Roberts received.

It isn't just that Judge Alito has a longer record on the bench than Chief Justice Roberts and that he would replace a perennial swing vote who was also a supporter of a constitutional right to abortion, a concept that Judge Alito criticized as a lawyer in the Reagan Administration.

Senators also want to press Judge Alito about his views of presidential power in light of the revelation that President Bush ordered the National Se-curity Agency to eavesdrop on American citizens without a court order.

But however much Washington may be hanging on Judge Alito's words, those words probably will be less important in the end than two numbers - 55, the number of Republicans in the Senate, and 14, the number of senators from both parties who have ruled out a filibuster of Supreme Court nominations except in "extraordinary circumstances." Democrats may succeed in delaying a committee vote on Judge Alito past Jan. 17, the date contemplated by committee Chairman Arlen Specter (R., Pa.). But defeating the nomination - or derailing it with a filibuster - is a problematic proposition regardless of what Judge Alito says.

All 10 Republicans on the Judiciary Committee - including Senator Specter, an abortion-rights supporter who plans to question Judge Alito closely on that issue - are expected to vote for the nominee. Even if the committee's eight Democrats all voted no, the nomination would be recommended to the full Senate.

Under current Senate rules, which some Republicans want to change, it takes 60 votes to cut off debate on a judicial nomination. Democrats have 44 seats and often can rely on the vote of Independent Sen. Jim Jeffords of Vermont. Judge Alito's opponents also hope that his past pronouncements on abortion - especially a 1985 application for a promotion in the Reagan Justice Department in which he said "I personally believe" that the Constitution does not protect abortion - might induce a handful of "pro-choice" Republican senators to desert his cause.

But that assumes Democrats would vote as a bloc to maintain a filibuster, which is unlikely.

Sen. Robert Byrd (D., W.Va.), who was conservative enough to be considered for a Supreme Court appointment by President Richard Nixon, has discouraged speculation about a filibuster. He is one of seven Democrats in the so-called Gang of 14 that agreed last May that judicial nominations would be filibustered only in "extraordinary circumstances."

That suggests an uphill battle for Alito opponents even if the nominee made a bad impression in the hearings, said Michael Comiskey, a political scientist at Penn State University's Fayette campus and the author of Seeking Justices: The Judging of Supreme Court Nominees.

"If the Democrats had even 47 or 49 seats, they could sustain a filibuster against Alito because I can imagine them getting three or four Republican votes if it were perfectly clear [after the hearings] that Alito opposed abortion rights," Mr. Comiskey said. "But with 44, it will be difficult."

As for "extraordinary circumstances," a term that is not defined in the Gang of 14 deal, Mr. Comiskey was skeptical enough senators would put the Alito nomination in that category.

Mr. Comiskey said Judge Alito's confirmation wasn't a foregone conclusion because the nominee, a 15-year veteran of the Philadelphia-based 3rd U.S. Circuit Court of Appeals, has a longer paper trail than Chief Justice Roberts, who served only two years as a federal appeals court judge before being named to the high court. The Alito paper trail includes hundreds of opinions the judge has written or joined on the 3rd Circuit and 93 documents from his days as lawyer in the Reagan Administration. Alito critics, including the liberal groups People for the American Way and the Alliance for Justice, say the paper trail leads inescapably to the conclusion that Judge Alito is hostile to individual rights. They cite studies like one by Professor Cass R. Sunstein of the University of Chicago Law School that concluded that "when there is a conflict between institutions and individual rights, Judge Alito's dissenting opinions argue against individual rights 84 percent of the time."

The Bush Administration and Judge Alito's supporters counter that critics have "cherry-picked" decisions that support their caricature of the judge as a conservative activist while overlooking rulings in which he favored plaintiffs, racial minorities, and abortion rights. Several of Judge Alito's colleagues and former law clerks, including liberal Democrats, have said he is not an automatic vote for one side or the other.

Contact Michael McGough at: mmcgough@nationalpress.com or 202-662-7025.



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