Samuel A. Alito, Jr. -- I bet you didn't know Antonin Scalia's real name is Samuel A. Alito, Sr. -- will be facing the Senate Judiciary Committee all this week, and the discussions will pretty much determine the outlook of the highest court in the land for the next generation. No big deal.
While the initial discussions over Alito's confirmation hearings surmised that things would rest on the familiar issues of abortion and minority rights, it seems all the revelations about the imperial presidency have steered things in another direction.
As the New York Times notes today:
Judge Samuel A. Alito Jr. ... will have a fresh road map from the Roberts hearings when he sits to face the committee Monday for his own confirmation hearings. The topics to be covered, the nature and tenor of the senators' questions, and the limits on what Judge Alito will be willing to answer will almost certainly follow the path cut in September.There's a new liberal advocacy group ad out there which is pushing back on Alito on precisely these issues -- he supports unchecked executive power, he supports warrantless searches, and he even supported the strip search of a 10-year-old girl. (I know those on the right see that last point as overblown, but Alito did support that and he did so far outside the opinions of the rest of his court. Deal with it.)
But there will be distinct differences, too. Judge Roberts replaced Chief Justice William H. Rehnquist, meaning that his nomination was a one-for-one, conservative-for-conservative swap. If Judge Alito is confirmed, he will replace Justice Sandra Day O'Connor, whose vote was often the fulcrum on which the Rehnquist court's decisions turned.
Judge Roberts's judicial record was, moreover, comparatively thin, a product of less than two years as a judge on the United States Court of Appeals for the District of Columbia Circuit. Judge Alito, by contrast, has produced hundreds of opinions in his 15 years on the United States Court of Appeals for the Third Circuit, in Philadelphia. Unlike Judge Roberts, he has written at length on some of the most contentious issues of the day.
Judge Roberts was asked only a few questions about what has since become a burning issue: the scope of executive power. Several senators say they will question Judge Alito closely on the legal implications of the recently disclosed domestic surveillance program.
Everyone is predicting that the Alito nomination will be, in the immortal words of George Tenet, a "slam dunk." I'm not so sure. If the discussion centers on executive authority, I think the Democrats can find some real support from the more libertarian members of the Republican Party. We'll see.