Alito Before Senate Judiciary Committee: Day One

It was opening-statement day Monday as the confirmation hearings began in Judge Samuel Alito's quest for a seat on the U.S. Supreme Court. Appearing on his first day before the Senate Judiciary Committee, Alito pledged to be fair with all elements of American society.

"No person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law," Alito said in a 11-minute opening statement. "A judge can't have any agenda. A judge can't have any preferred outcome in any particular case. The judge's only obligation - and it's a solemn obligation - is to the rule of law."

No big surprises there. I didn't really expect a promise to nuke Roe V. Wade on the first day.

The majority of the day was spent with the 18 members of the Judiciary Committee – 10 Republicans and 8 Democrats – giving opening statements that telegraphed the tone to expect in the coming days. (Forgive the length of this piece, but I tried to condense a full day of the hearings into the most salient passages.)

Judiciary Committee Chairman Arlen Specter (R-PA) made it clear that there was one major question that Alito will find it hard to avoid in these hearings.

"Perhaps the dominant issue in these hearings is the widespread concern about Judge Alito's position on a woman's right to choose. This has risen, in part, because of a 1985 statement made by Judge Alito that the Constitution does not provide for the right to an abortion. It has risen, in part, because of his advocacy in the Solicitor General's Office seeking to limit or overrule Roe and from the dissenting portion of his opinion in Casey v. Planned Parenthood in the 3rd Circuit.

"This hearing will give Judge Alito the public forum to address the issue, as he has with senators in private meetings, that his personal views and prior advocacy will not determine his judicial decision..."

Patrick Leahy (D-VT), the ranking Democrat on the Committee, did his best to sketch out the critical nature of the hearings and the Supreme Court itself, while launching a preemptive strike against the GOP's implication that any dissent on Alito amounts to "undignified" hearings.

"This hearing is the only opportunity that the American people and their representatives have to consider the suitability of the nominee to serve as a final arbiter on the meaning of the Constitution and its laws.

"Has he demonstrated commitment to the fundamental rights of all Americans? Will he allow the government to intrude on Americans' personal privacy and freedoms? In a time when this administration seems intent on accumulating unchecked power, Judge Alito's views on executive power are especially important. It's important to know whether he would serve with judicial independence or as a surrogate for the president nominating him."

Ted Kennedy (D-MA) came out firing and took dead aim at the extent to which it is obvious that an Alito seat on the Supreme Court will continue the shift in power from the legislative to the executive branch of government.

"We now have the record of Judge Alito's 15 years on the bench and the benefit of some of his earlier writings that were not available 15 years ago. And I regret to say that the record troubles me deeply.

"In an era where the White House is abusing power, is excusing and authorizing torture and is spying on American citizens, I find Judge Alito's support for an all-powerful executive branch to be genuinely troubling. Under the president's spying program, there are no checks and balances. There is no outside review of the legality of this brazen infringement on the civil rights and liberties of the American people. Undeterred by the public outcry, the president vows to continue spying on American citizens.

"Ultimately, the courts will make the final judgment whether the White House has gone too far. Independent and impartial judges must assess the proper balance between protecting our liberties and protecting our national security. I'm gravely concerned by Judge Alito's clear record of support for vast presidential authority unchecked by the other two branches of government.

"In decision after decision on the bench, he has excused abusive actions by the authorities that intrude on the personal privacy and freedoms of average Americans. And in his writings and speeches, he has supported a level of overreaching presidential power that, frankly, most Americans find disturbing and even frightening."

Joining Kennedy in his concern about the unchecked power of the Bush White House, was Senator Russ Feingold (D-WI) who also gave Alito the reality that confirmation to the Supreme Court is earned and not a gift from the president.

"No one is entitled to a seat on the Supreme Court simply because he has been nominated by the president. I think the burden is actually on the nominee to demonstrate that he should be confirmed.

"We begin these hearings today in an important time. Less than a month ago, we learned that this administration has for years been spying on American citizens without a court order and without following the laws passed by Congress. Americans are understandably asking each other whether our government believes it is subject to the rule of law.

"Now, more than ever, we need a strong and independent judicial branch. We need judges who will stand up and tell the executive branch it is wrong when it ignores or distorts the laws passed by Congress. We need judges who see themselves as custodians of the rights and freedoms that the Constitution guarantees, even -- even -- when the president of the United States is telling the country that he should be able to decide unilaterally -- unilaterally -- how far these freedoms go."

The bizarre and scary point in the day came when Senator Tom Coburn (R-OK) took to the floor with a speech that could very easily have come from the mouth of Pat Robertson. Speaking specifically on the issue of a woman's right to choose, Coburn did everything but wave a big foam number-one finger with "Repeal Roe v. Wade" written on it.

"The ripping and tearing of an unborn child from his mother's womb through the hands of another, and we say, "That's fine; you have a constitutional right to do that. How is it that we have a right of privacy and due process to do that but you don't have the right, as rejected unanimously by the Supreme Court in 1997, to take your own life in assisted suicide?

"You know, how is it that we have sodomy protected under that due process but prostitution unprotected? It's schizophrenic. And the reason it's schizophrenic is there's no foundation for it whatsoever other than a falsely created foundation that is in error.

"I don't know if we'll ever change that. It's a measure of our society.

"But the fact is that you can't claim, in this Senate hearing, to care for those that are underprivileged, to those that are at risk, to those that are vulnerable, to those that are weak, to those that suffer and, at the same time, say I don't care about those who have been ripped from the wombs of women and the complications that have come about throughout that. So, the debate, for the American public -- and the real debate here is about Roe."

One of my own Senators, Chuck Schumer (D-NY), made it clear that Alito is the choice of the Religious Right and put the GOP on notice that their hypocrisy on the subject of up-or-down votes was being called up-front.

"First, because you've been named to replace Sandra Day O'Connor, the pivotal swing vote on a divided court; second, because you seem to have been picked to placate the extreme right wing after the hasty withdrawal of Harriet Miers; and, finally, and most importantly, because your record of opinions and statements on a number of critical constitutional questions seems quite extreme.

"So, first, as this committee takes up your nomination, we can't forget recent history, because that history increases your burden and explains why the American people want us to examine every portion of your record with great care.

"Harriet Miers' nomination was blocked by a cadre of conservative critics who undermined her at every turn. She didn't get to explain her judicial philosophy, she didn't get to testify at the hearing, and she did not get the up-or-down vote on the Senate floor that her critics are now demanding that you receive.

"Why? For the simple reason that those critics couldn't be sure that her judicial philosophy squared with their extreme political agenda. They seem to be very sure of you. The same critics who called the president on the carpet for naming Harriet Miers have rolled out the red carpet for you, Judge Alito. We'd be remiss if we didn't explore why.

"You give the impression of being a meticulous legal navigator, but, in the end, you always seem to chart a rightward course."

Day Two coming up, with each Senator getting 30 minutes to question Alito.