Bench Memos

Alito–Day One

John Roberts declared himself an umpire. Sam Alito hit the homerun. For hours , the committee membership laid out the usual points of reference — abortion, deference to legislative power, and protection of various individual rights. This is well trod ground and it is unlikely that Sam Alito’s answers will differ widely from John Roberts, or for that matter, Sandra O’Connor. Democratic members nevertheless signaled they intend to try to tar Alito with the president’s alleged overreaching, the downfall of Harriet Miers, and even some mysterious unattributed criticism of Justice O’Connor by somebody or other on the right side of the political ledger. Through it all, Alito sat silently, even stoic – ly,with a poker face that well hid any natural outrage almost anyone else would feel on being cariacatured. But then came the Judge. No rancor, no rhetorical flourish. And as expected, very little of the Roberts charm offensive , even as the day dragged on, it was clear that Roberts was being used by the committee generally as the “gold standard” for committee appearances. Well, there must be some level of achievement beyond gold because Alito with complete sincerity and nervous confidence exceeded it. His opening praise of O’Connor defused the silly notion that there was some great divide between those who support Alito and those who admire her. And then, in an economy of words, Sam Alito became everyman — or at least the everyman after he had expressed the most extraordinary love of parent, spouse, and community, and an unquestioned fidelity to the rule of law. The immediate reaction of any sane person would be to bag the hearing as superfluous. But knowing it is yet to come, is from today also to know it is designed to rough up the nominee. Senator Kennedy certainly telegraphed more than a punch. One feels reassured that in the end Alito will be confirmed not just because the Republicans have 55 votes, but because it is the right thing to do for a country that for many years was fortunate indeed to be represented by the unpretentious young man from Trenton.

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