Judge Samuel J. Alito, Jr. Surely Will Be Confirmed

Posted: Feb 13, 2006 4:18 PM

He was going to be subjected to a filibuster. Now it appears that Supreme Court Justice Nominee Samuel J. Alito, Jr. will get an up-or-down vote.

He was expected to be a real let-down after the Senate Judiciary Committee confirmation hearings of Chief Justice John G. Roberts, Jr. If anything, Judge Alito out-performed Chief Justice Roberts. Judge Alito was going to be pinned down on abortion or else he would be rejected for the Supreme Court. Not only was Judge Alito not pinned down on abortion but he did not agree with Senators as Roberts had that Roe v Wade was “settled law.”

He surely was going to lose his composure at some point, thus giving Senators the opening for which they were looking. Judge Alito remained absolutely composed during and after answering more than 700 questions.

He was subjected to the best organized, most expensive, liberal campaign in history. Conservatives matched liberal activity dollar-for-dollar, call-for-call.

He would be fortunate if he could garner 52 votes to be confirmed by the full Senate. Now it appears that Judge Alito may get approximately 65 votes in his favor. He was not expected to get a single Democrat vote to confirm his nomination. Now it appears that Judge Alito could have 10 or more Democrats join Republicans in voting for him. He was expected to lose a minimum of three and perhaps a maximum of five Republican votes for confirmation. It now is possible that Judge Alito could get all 55 Republican votes.

Thus was the remarkable saga of the Senate confirmation hearings of Judge Alito this past week. Barring some wholly unexpected last minute revelation which would cause the confirmation hearings to be re-opened, the Alito nomination is headed for the floor of the United States Senate and an up-or-down vote, either the week of January 15 or the week of January 22. There was good reason for President Bush to call Alito after he finished his three days of testimony last Thursday. Simply put, Alito did a masterful job before that highly charged committee.

Nonetheless, the vote almost certainly will be 10 to 8, or strict party-line, to recommend the Alito nomination to the full Senate. If ten or more Democrats appear to be willing to vote for his confirmation, why the party-line vote out of the Senate Judiciary Committee? That Committee, as well as the Health, Education, Labor and Pensions Committee, is stacked with the sharpest liberals in the Senate. These eight Democrats are barely representative of the 45 Senators who comprise the entire Democrat Conference in 2006 (44 Democrats and 1 Independent). When the nomination is scheduled for the Senate Floor all Senators will be able to vote.

Briefly, right up until the second day of questioning of Judge Alito there appeared to be some chance that the Alito nomination might be filibustered. That day the filibuster went out the window, in my view, because Democrats overreached and became, for the most part, mean-spirited and, in some cases, angry. That caused Senator Lindsay O. Graham (R-SC) to apologize to Judge Alito for the treatment he had received from Committee Democrats. That apology caused Mrs. Alito to burst into tears and became the lead story of that second day of the Alito confirmation hearings. That lead story continued to make headlines through the evening news cycle and clear through the morning news cycle of the third day of hearings. At that point, more reasonable Democrats told their leadership that they wanted no part of this charade.

A charade it was. Senator Orrin Hatch (R-UT), former long-term Chairman of the Senate Judiciary Committee, said before the questioning began that he had been told that not a single Committee Democrat would vote for Alito. Hatch explained that “They’ve already made up their minds. Nobody will be listening.” During the Senate Judiciary Committee confirmation hearings for Chief Justice Roberts, Ranking Democrat Senator Patrick J. Leahy (D-VT) surprised even his colleagues by announcing that he would vote in favor of the Roberts nomination.

We thought almost certainly that Leahy did so to provide himself the opportunity to contrast Alito with Roberts, thus justifying a vote against Alito. No doubt Leahy will attempt to do that, but it will be more difficult for him in that Alito did at least as favorable a job or perhaps even a little better job of appealing to the American people. Moreover, Alito’s answers were similar enough to Roberts that Leahy could be splitting hairs if he were to claim that Roberts satisfied him but Alito did not.

Left-wing groups which so greatly influence the Democratic Party were outraged when Leahy and Senator Herbert H. Kohl (D-WI) voted for Roberts in the Senate Judiciary Committee and were joined by 20 Democrats in the full Senate. The groups have been demanding a filibuster.

Even after many media liberals suggested that Senate Judiciary Committee Democrats went too far with Alito, Senate Minority Leader Harry M. Reid (R-NV) praised his colleagues on the Committee when saying they did precisely what they were expected to do. While keeping the filibuster theoretically on the table, Reid said Democrats would meet early this week to determine their strategy. Unless threats from leftists and pro-abortion groups are so great that Democrats feel they have no choice, they will drop the filibuster and will not require that a vote against Alito be a mandatory party-line vote. That position would free up 10 to 12 Democrats who at least have expressed an open mind about Alito and voting for his confirmation.

There is much rejoicing in conservative circles about Alito. Our folks believe he would move the High Court to the right.

At the risk of being accused of dampening spirits, I will make two cautionary notes. First, we simply do not know how Justices will vote until they actually have been appointed to the High Court. Most are a disappointment in that respect. The late right-wing New Hampshire Governor Meldrim Thompson, Jr. told me he would stake his career that we would love Judge David H. Souter as an Associate Justice on the Supreme Court. Not! Only Justice Byron R. White, JFK’s sole appointment to the Supreme Court, was a surprise in the right direction. Second, having Alito on the High Court, contrary to public understanding, does NOT mean conservatives will be a majority on the High Court. Have we forgotten about Justice Anthony M. Kennedy?

Assuming that Judge Alito and Chief Justice Roberts typically would vote as followers of the Constitution, that would mean that they plus Justices Antonin Scalia and Clarence Thomas will be in the conservative wing, with Justices Ruth Bader Ginsburg, Stephen G. Brier, John Paul Stevens and David H. Souter in the liberal wing, leaving Justice Anthony M. Kennedy as the swing vote. Justice Kennedy, who allegedly is Catholic, has voted for abortion and sodomy rights and the right for the government to take your home and give your property to a developer if it means more money in the city coffers. Justice Kennedy once may have been a conservative, but if he ever was one, he is no longer a conservative. Unless the considerable intellects of Roberts, Alito, Scalia and Thomas can persuade Kennedy, we more often likely are to see Kennedy voting with the liberals. This would mean that conservatives would have to wait for another retirement and would have to hope that the retirement would occur while George W. Bush is President and while Republicans control the Senate.

Assuming President Bush gives America another good nominee, and presuming the good health and willingness of Justices Scalia and Thomas to stay on the High Court, then and only then conservatives would have a majority. I take nothing away from an Alito victory. But I have to be honest about this. We are not there yet.