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MSM Reaction to Alito Hearings:
With Tuesday's hearings over, we're getting the first of the big media insta-reactions to the Alito hearings. Based on my quick survey, most commentators seem to think Alito had a good day. Here are a few representative reactions:

  Over at the New York Times, Adam Liptak and Adam Nagourney think Alito is holding up well:
  If Senate Democrats had set out to portray Judge Samuel A. Alito Jr. as extreme on issues ranging from abortion to government surveillance of citizens, they ran up against an elusive target on Tuesday: Samuel A. Alito Jr. For nearly eight hours, Judge Alito was placid, monochromatic and, it seemed, mostly untouchable.
At the Washington Post, Charles Lane focuses on how Alito presents himself as low-key and reassuring:
  On his first day of questioning from senators, Supreme Court nominee Samuel A. Alito Jr. tried to send a reassuring message: The country may be at war, but Americans' personal privacy and civil liberties will be safe with me.
  Under sharp questioning from Democrats and gentle prodding from Republicans on the Senate Judiciary Committee, the federal appeals judge portrayed himself as a cautious, independent thinker who understands the judiciary's role as a check on presidents who overstep their constitutional authority.
At NPR & Slate, Dahlia Lithwick thinks Alito is succeeding by making the proceedings really really boring:
  There are, it seems, better and worse ways to game your Supreme Court confirmation hearings. John Roberts charmed his way through the proceedings. Sam Alito has chosen to simply bore his way through, and as a consequence, two days into the hearings, the Democrats on the judiciary committee have hardly laid a glove on him. I count only three occasions today on which he refuses to answer a question; that's not going to be his way. His way is to drill down and answer in lengthy doctrinal detail; to justify his past decisions with technical legal analysis; to expound upon three-part tests and legal factors to be balanced. He never tells you the answer to the question, but he's always expansive on how he might get there.
  There are some tangible benefits to this approach: For one thing, Alito has thus far generated not one flash of heat. There has been no clash, no argument, no losing of his temper. He is like a very, very smart rock. And this stoniness is slowly wearing down his opposition. . . . Alito is crushing the Democrats with unrelenting tedium and a demonstrable love for material they don't really understand.
Robert Schwartz (mail):
Dahlia is right. I got home from the gym, took a shower and sat down to watch a few minutes of the hearing at 5:30. When I cam around it was 6:45.
1.11.2006 12:58am
Bruce Hayden (mail) (www):
I love the comment "He is like a very, very smart rock. And this stoniness is slowly wearing down his opposition. . . . Alito is crushing the Democrats with unrelenting tedium and a demonstrable love for material they don't really understand."
1.11.2006 1:12am
Rhadamanthus1982 (mail) (www):
I can't say I share Bruce Haden's love of the simile; I'd have to question how a rock can in fact crush anything? Maybe a more appropriate similie would be Treebeard from LOTR: unrelenting tedium, slow etc....

On another comparable note anyone in Britain may recognise the evasive methods of Judge Alito; cf to 'Yes Minister' and 'Yes Prime Minister'; it seems that Sir Humphrey Appleby is reborn in the guise of Sam Alito!!!!
1.11.2006 5:09am
George Gregg (mail):
Yesterday when I was watching, something I didn't understand is why Alito's "I said that then" defense wasn't really being challenged.

It seemed to me that the only pragmatic purpose in making the argument "I said that back then when I was applying for a job/working for Reagan/much younger" is to functionally suggest that he NOW no longer holds the position. That's the strong implication, right? Yet, we had very little real indication that what Alito once said on his applications, in memos and in interviews is at variance with what he still believes.

So I was watching, wondering why some (Dem) senator didn't ask him if this is what he intends to imply with his argument (i.e., a divergence from those past views). Or, if he does NOT intend to imply such divergence, why he was attempting to obfuscate or mislead the senators on his views.

Then, thankfully, Schumer did exactly this. And he didn't let Alito run off down some vague rabbit hole tangent, but held him to the specific question. And what happened? Alito threw up a stone wall and refused to answer which, honestly, was more telling than anything. Schumer's comments following this, using the "mother-in-law" analogy were spot-on.

I mean, given 30 minutes, I'm pretty sure I could do better than many of the senators while still remaining politic. It is, after all, their job to ask the tough questions.

As I've said here before, I think Alito is a good judge and will be confirmed easily. I am concerned with some of the views he probably holds, though. So it seems to me unfortunate that his confirmation will happen with (1) Republicans bending over backward to be his advocate (poor Alito was covered in Republican slobber when yesterday was over) and (2) Dems being generally incompetent at elucidating his current judicial philosophy.

But my conclusion is that the hearings are elaborating less about Alito than about the Senate. Namely, in this process, most Republicans are wilfully abdicating their responsibility and most Democrats are woefully inept at fulfilling theirs.

Which, upon reflection, is probably a generally accurate description of what's going on in Washington today.
1.11.2006 7:36am
WB:
I read the Lithwick excerpt and think... in other words, he's answering the questions like a judge.
1.11.2006 8:18am
Jutblogger (www):
It seems to me to be a harbinger of bad news for the left if Lithwick is reduced to calling him boring. As any lawyer would know, an exciting judge normally comes at heavy price (i.e., bad temperament, bad sense of humor, beyond bad rulings, king syndrome, etc. etc.).
1.11.2006 8:23am
nk (mail) (www):
I think Alito should be confirmed based on his intellect, legal experience, record of public service and character. I place very little value on "judicial philosophy". An honest, intelligent judge will do the right thing in a case regardless of his own predispositions. I am also encouraged by this comment I heard from someone who does not ordinarily take much interest in law or politics: "Why did [the President] even consider Harriet Miers when had people like Alito he could nominate?" I believe that the majority of Americans also see Alito as a solid nominee for the Supreme Court.
1.11.2006 8:24am
SimonD (www):
His way is to drill down and answer in lengthy doctrinal detail; to justify his past decisions with technical legal analysis; to expound upon three-part tests and legal factors to be balanced.
Well gosh! Surely not "technical legal analysis"! Anyone would think he was applying for a job in a law-related field or something!

Perhaps Dahlia would prefer if the nominee followed Sen. Feinstein's inane request to Judge Roberts to talk about his heart.
1.11.2006 8:40am
Adam (www):
As everyone knows, there's only one thing that can be used to bring down a rock: paper. If there's nothing new in his record, he sails through.
1.11.2006 8:45am
lralston (mail):
"He never tells you the answer to the question, but he's always expansive on how he might get there."
"Alito is crushing the Democrats with unrelenting tedium and a demonstrable love for material they don't really understand."
Sounds like the criteria for judge?
1.11.2006 8:59am
SimonD (www):
To give Dahlia her due, I love, love love love, this phrase:
Alito is crushing the Democrats with unrelenting tedium and a demonstrable love for material they don't really understand.
1.11.2006 9:09am
Anderson (mail) (www):
Okay, you masochists who actually watch this stuff:

Has any senator yet inquired of Alito what he thinks a "presidential signing statement" means for a court's interpretation of a law, and what consideration (if any) Alito would give such statements?

I would think that the Senate would take some interest in that issue.
1.11.2006 10:32am
Jim Rhoads (mail):
A:

The answer is yes. And Alito's answer was, paraphrased, "not much". He testified the text of the statute is what is important, not so much what individual legislators or the President says it says or means.
1.11.2006 10:52am
Anderson (mail) (www):
Interesting, Jim--thanks. Compare this from Ethan Leib at TNR:
... Alito's Third Circuit opinions do not seem to be the product of a committed textualist. Many of his opinions discuss and analyze legislative history extensively--exactly what pure textualists seek to avoid.
Leib notes that Alito was sounding much more textualist at the hearing.
1.11.2006 11:02am
jabster:
I heartily recommend Elizabeth Bumiller's article in today's New York Times analyzing the number of words each Senator said yesterday with the number of words Judge Alito said. To no one's surprise, Joe Biden won the Bloviation Prize, managing to ask just 5 questions in 30 minutes of meandering speechifying. I think one of the most admirable qualities Alito has displayed so far is his uncanny ability to patiently listen to halfwits on both sides of the aisle spout gibberish instead of pressing him with intelligent, focused questions. One thing is clear -- almost none of these Senators is remotely qualified to sit on any appellate court.
1.11.2006 11:35am
Tyrone Slothrop (mail) (www):
I can't stand watching the coverage of the confirmation hearings, since the unrelenting focus is on how Judge Alito and the Senators are coming across on television, rather than on the substance of what they're saying. He and the White House have obviously decided that if he says nothing much, they have the votes to get him confirmed. So as political theater, it should be no surprise that little of interest is happening.

What I want to know is, what will Alito be like as a justice? I really know little about him, but the impression I get is that he will be decent, but undistinguished. If I'm wrong, maybe someone who knows him well can tell me. It seems to me that he was chosen because he would be pleasing to certain political constituences, and because he would be confirmed, and because he was seen as a reliable vote on issues this White House cares about. But it also seems to have been an opportunity missed to put a real star (e.g., McConnell) on the bench.

Please, someone tell me I'm wrong.
1.11.2006 11:37am
RPS (mail):

But my conclusion is that the hearings are elaborating less about Alito than about the Senate. Namely, in this process, most Republicans are wilfully abdicating their responsibility and most Democrats are woefully inept at fulfilling theirs.

Which, upon reflection, is probably a generally accurate description of what's going on in Washington today.


I don't know. What else would you want them to do? If by elucidating his judicial philosophy you mean getting him to answer specific questions about how he would decide specific cases, I don't see that happening. Regardless of whether one thinks it should, it is not going to. What did Schumer's persistence get him? A big bag of nothing. If the Senate's role is to determine whether a nominee has the intellectual ability and temperment to serve on the bench, then I think mission accomplished.
1.11.2006 12:20pm
Mike G. in Corvallis (mail):
I'm waiting for Senator Feinstein to ask him what kind of tree he would be ...
1.11.2006 1:09pm
Julian Morrison (mail):
The GOP is being sneaky, and smart. Much more so than the Dem senators, who are all digging in the wrong place. Alito isn't an activist in disguise or any sort of trojan horse. Therefore their attempts to penetrate the disguise will fail. Rather, he's a deadweight, a proactive "passivist". Therefore, he will slip past their increasingly frustrated attacks.

The cunning plan is, Roberts and Alito together are both conservative-tinged deadweights. They'll anchor the court to the letter of the law. And, crucially, they'll defer to congress with no particular personal agenda. Result: massive disempowerment of the supreme court as an active political force, corresponding empowerment of the Republican congress.

And there's no law against congress being as politically biased as it pleases...
1.11.2006 1:19pm
Cornellian (mail):
The cunning plan is, Roberts and Alito together are both conservative-tinged deadweights. They'll anchor the court to the letter of the law. And, crucially, they'll defer to congress with no particular personal agenda. Result: massive disempowerment of the supreme court as an active political force, corresponding empowerment of the Republican congress.


Uh huh, and if you believe that, then no doubt Scalia has convinced you that growing marijuana in your own backyard for your own you use falls within the Constitutional letter of the law for federal jurisdiction as "interstate commerce."
1.11.2006 6:31pm