Those who hold hands with the future at night and relay their divinations tell us that Judge Alito will be okayed by the Senate Judiciary Committee by a party vote. Some reach even further and predict that he will be confirmed by a party vote, but that there might be a little maneuvering on the floor in the matter of a filibuster. One is told not to expect a filibuster because it is a weapon of last resort, and weapons of last resort should be kept for last-resort use. Several times, in the recent past, the question has been raised whether to tackle the perception of a filibuster as a parliamentary device invented by Mr. Smith when he went to Washington to throw himself athwart corruption.
There is a soft place in conservative hearts for the filibuster, because it can be viewed as a means to arrest an arrant majority from carrying out its designs on an oppressible minority. When last fall it was proposed that the filibuster be faced head-on, a working arrangement was made. Democrats in the Senate promised that the filibuster would not be used except in grave matters. This was a way to communicate that presidential nominations would not be paralyzed by filibuster threats. To break a filibuster requires a vote of 60. But to abolish the filibuster requires a vote of only 51. And the Republicans command a majority of 55.
What is likely to happen next week is a great deal of oratory expressing the dissatisfaction of Democratic senators with the nomination of Samuel Alito. This will involve the deployment of a great deal of hot air. The questioning of Judge Alito was so comprehensive, it is inconceivable that persistent detractors will find much to ventilate in any contest confined to the merits of the case. And the same is true of other witnesses questioned about Alito. Civil Rights Commissioner Peter Kirsanow, for instance, spoke about Alito’s record on civil-rights cases. Kirsanow testified that over 90 percent of Alito’s opinions in such cases were concurred in by his Democratic colleagues on the Third Circuit Court. Listening to Kirsanow, and to judges who have served with Alito, observers had, most of them, the feeling that there really wasn’t very much left to keep apprehensions about Alito alive, other than that he was created by an unpopular president. But senators can’t give that as the reason for opposing Alito. It simply doesn’t sound quite right to say, “I will vote against the nominee because President Bush named him.” A senator prepared to say that should be prepared to call for an amendment to the Constitution denying the president the right to nominate judges.
There are questions of constitutional importance that overhang the deliberations of the judiciary committee. Mr. Alito wasn’t able to pronounce where, exactly, he believed the authority of the Executive ends. Many references were made to the Youngstown decision, which, in 1952, told President Truman that he did not have the authority to take over the steel mills. Judge Alito declined to say whether the authority claimed by President Bush to conduct surveillance met the standards laid down by Justice Robert Jackson in that case. Efforts to pin Alito down on abortion were futile, and (in the judgment of some) morally intrusive. What Alito said was that the Roe decision of the Court, acknowledging a woman’s right to terminate a pregnancy, had been substantially reaffirmed in later decisions, which tended to solidify its standing. However, there was still litigation challenging it, and therefore, as a potential justice of the Supreme Court, he would not give advisory judgments.
An extraordinary amount of time was given to Alito’s not having recused himself from a case in which Vanguard was involved, Vanguard being the mutual-fund company that manages Mr. Alito’s money. On this matter, Judge Becker of the Third Circuit Court spoke acidly, and introduced me to a word I hadn’t heard before. Becker explained why, for his own part, he had not recused himself from cases involving Vanguard even though his wife owned shares in the company: “I do not identify Vanguard on my recusal list because I am satisfied that my wife possesses no ownership interest in the Vanguard management company, which is what controls the recusal determination. She’s never received a proxy statement, an opportunity to vote for directors or any indicia of ownership other than her aliquot share in the fund to the extent of her investment.” Aliquot! Aliquot interests, okay!
But even as it will be a party vote on the Judiciary Committee, it will very possibly be a party vote on the floor. You begin by counting what one might call the John Birch wing of the Democratic party. These are folk who see military-industrial-complex members under their beds, scheming against minorities and civil rights.
What disappoints those who like to think of themselves as celebrants of democracy is the tribal tendency to take shelter in voting with the majority. There are certainly 25 Democratic senators who, if they submitted to a polygraph test, would confess that they believed Samuel Alito qualified to serve on the Supreme Court. But they seek the protective company of their fellow Democrats, and so, while talking about the need to do one’s duty, will fail to do so in respect of this nomination.