Alito's dry style encouraged the pretense that the Judiciary Committee Democrats were engaged in a serious inquiry into the nominee's judicial philosophy. Actually, liberal special interest groups demanded a response to this nominee that was more vigorous than the passive opposition to John Roberts as chief justice. As a result, the only Democratic senator who now can be counted on to vote for Alito is Sen. Ben Nelson, running for re-election this year in the very red state of Nebraska.
In this week's hearing, Biden typically did not disguise the political stakes involved in this confirmation process: the conservative Alito replacing Justice Sandra Day O'Connor, a swing voter who usually has swung left. Biden asserted that O'Connor was "the fulcrum on an evenly divided court," so that filling this seat is more important than Roberts replacing Chief Justice William Rehnquist.
Sens. Charles Schumer and Richard Durbin, two of the Senate's most partisan Democrats, have tried this week to escalate the intensity level of the hearings by asserting that the burden of proof was on Alito to show that he deserves to be on the Supreme Court. Just how he was supposed to do that was not spelled out. But that extraordinary heightening of the standards of confirmation would relieve the senatorial inquisitors from responsibility for measuring a nominee's fitness.
Schumer, at the end of the committee table in seniority, had to spend the entire day Tuesday watching his colleagues shooting blanks before he got his chance to fire the real thing. Schumer was well prepared, with a senatorial third degree of Alito demanding repeatedly to know whether he believed in a constitutional protection of abortion. That question led off a harsh, carefully scripted interrogation of the nominee. It made Chuck Schumer look mean and nasty, but that hardly derailed Sam Alito.