The Democratic Gang That Couldn't Question Straight

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" Zepp " <zepp

Wed, 11 Jan 2006 06:23:15 -0800

[Zepps_News] Democrats falling down on job on Alito hearings

 

 

 

 

The Democratic Gang That Couldn't Question Straight

 

--Eight Democratic senators had a chance to grill Samuel Alito Tuesday

 

-- but their artless queries could have been dodged by a tree sloth.

 

 

 

 

 

Walter Shapiro, Salon, January 11, 2006

http://www.salon.com/news/feature/2006/01/11/alito_confirmation_hearings/

 

WASHINGTON -- They were the gang who couldn't question straight.

 

The eight Democrats on the Senate Judiciary Committee were given four

hours Tuesday to grill Samuel Alito in the first unscripted day of the

Supreme Court confirmation hearings, but for all they accomplished

politically, they might as well have grilled frankfurters. With the

clock ticking, the committee Democrats failed to advance any major new

lines of argument or prompt any damaging admissions from George W.

Bush's latest pick to replace Sandra Day O'Connor on the bench.

 

Instead, Alito's foes fell into the predictable trap of prefacing

every question with a three-minute speech and then phrasing the query

so artlessly that even the cast of Teletubbies would not have been

fooled.

 

Joe Biden -- one of the three Democrats on the committee who has spent

half his life in the cave of winds known as the Senate – twice called

Alito " a man of integrity. " That may be polite, but it was not an

adroit way to set up a political argument that Alito broke his word to

the Senate by ruling on a case that involves the firm that manages his

mutual-fund investments.

 

Herbert Kohl, perhaps the least skilled Democratic questioner, was

surprisingly on a roll as he asked Alito to explain his 1988 comment

hailing Robert Bork (the last Supreme Court pick to be blocked by

Democrats) as " one of the most outstanding nominees of this century. "

 

Confronted with that bygone quote, Alito was reduced to haplessly

claiming, " When I made that statement in 1988 I was an appointee in

the Reagan administration and Judge Bork had been a nominee of the

administration. " But any hopes of a memorable moment collapsed when

Kohl ended the line of questioning by absent-mindedly saying, " Very good. "

 

With the 30-minute rounds of questioning alternating between fawning

Republicans and feckless Democrats, darkness had already fallen over

Washington when Chuck Schumer, the most fiercely partisan Alito foe,

finally got his moment at the microphone. Schumer devoted six long

minutes to demanding that Alito explain whether he still believes, as

he claimed in a 1985 job application, that " the Constitution does not

protect a right to an abortion. " Each time Schumer repeated the

question in a hostile tone, Alito would respond with an evasive answer

like, " I would need to know the case that is before me and I would

have to consider the arguments and they might be different arguments

from the arguments that were available in 1985. " Finally, Schumer gave

up in frustration as he said, " I know you're not going to answer the

question.

 

I didn't expect really that you would. " Question for Sen. Schumer: If

you didn't expect a useful answer, why did you waste six minutes

asking the question?

 

The daylong circus of missed opportunities made me long for the days

when John Edwards sat on the Judiciary Committee. Unique among

congressional inquisitors, Edwards had actually faced a jury as a

lawyer recently enough to still remember his courtroom tricks. During

Bush's first term, I twice watched with awe as Edwards trapped

Attorney General John Ashcroft in an embarrassing knot of

contradictions over military tribunals and enemy combatants. But

nothing like that happened Tuesday.

 

Instead, the Democrats squandered the first round of questioning

without coming up with a politically appealing rationale to justify a

Senate filibuster against Alito, the only plausible strategy for

stopping the nomination.

 

In a reflection of either overconfidence or a shrewd recognition of

his limitations as a public figure, Alito spent the long day

refraining from any attempt to make himself charming, colorful or even

interesting.

 

Gone was the man-of-the-people number from Alito's opening statement

Monday, which stressed his blue-collar New Jersey roots. In its place

was Alito as the Law Student from Hell, the geek who memorized every

bit of case law in the library without developing a single opinion

that would make him an intriguing dinner-party companion.

During the hearing, the legal phrase " stare decisis " (rough meaning:

Previous precedents are authoritative) was uttered so often that I

began imagining a particularly outspoken porn star named Starry

Decisive. In the ritual dance over abortion, a judicial nominee who

affirms a deep belief in stare decisis is saying, in effect, that he

or she will not overturn Roe v. Wade.

 

But when Arlen Specter, the GOP committee chairman who favors abortion

rights, raced down this time-worn path with the hearing's open bell,

the nominee did not do much to be reassuring. Alito pledged his troth

to stare decisis, but then immediately hedged: " It's not an inexorable

command, but it is a general presumption that courts are going to

follow prior precedents. " The word " inexorable " is the one pregnant

with the hidden meaning. As Ryan Lizza recently pointed out in the New

Republic, Justice Louis Brandeis declared in 1935 that precedent (OK,

he used that pesky two-word Latin phrase) " is not a universal,

inexorable command. "

 

Getting back to abortion, Chief Justice William Rehnquist quoted

Brandeis in his 1992 dissent in the Casey case, the decision that

affirmed Roe v. Wade. So when Alito said " inexorable, " he was

seemingly signaling that he agreed with Rehnquist that Roe should be

overturned.

 

Somehow it is hard to imagine a dynamite television commercial built

around Alito's use of " inexorable. " That truth encapsulates the

daunting challenge facing Senate Democrats. There are valid reasons to

oppose Alito (from abortion rights to his exaggerated respect for the

powers of the presidency), but after two days of Judiciary Committee

hearings, it is still Eight Democrats in Search of a Story Line.

 

--

 

(laughter)

 

" Now, by the way, any time you hear the United States government

talking about wiretap, it requires -- a wiretap requires a court

order. Nothing has changed, by the way. When we're talking about

chasing down terrorists, we're talking about getting a court order

before we do so "

-George W. Bush, April 20, 2004

 

 

 

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