It must be excruciating. I mean, here is Judge Sam Alito, slogging through the single biggest job audition of any lawyer's life, and all anybody can talk about is John Roberts. Senate judiciary committee Chairman Arlen Specter, R-Pa., eight minutes into the confirmation hearings: "The preliminary indications from Chief Justice John Roberts' performance on the Court and his judiciary committee testimony on 'modesty,' 'stability' and not 'jolting' the system suggest that he will not move the court in a different direction." Then Sen. Orrin Hatch, R-Utah, reminisces fondly: "As Chief Justice Roberts described it when he was before this committee last fall, judges are not politicians." Then comes Sen. Chuck Grassley, R-Iowa, again borrowing from the last nominee: "Like Chief Justice Roberts, it appears that Judge Alito tries to act like an umpire, calling the balls and strikes, rather than advocating for a particular outcome in a case." On and on it goes. All anyone can talk about is how darn humble John Roberts is, and poor Alito—who really is humble—just has to sit there and take it.
This is a hearing that so far lacks for a metaphor. Except to the extent that John Roberts is himself becoming the metaphor. Roberts' brilliant image of Justices-as-Umpires, introduced during his opening statement last September, came to dominate not only his own hearings but now threaten to dominate Alito's. Alito's own opening statement this afternoon contains no central theme, image, or metaphor; no neat word-picture to sell his own jurisprudential views, unless, perhaps, it's this one: "My family was too poor to afford a judicial philosophy."
Of course, it's unreasonable to compare Sam Alito to John Roberts. Roberts sailed through his confirmation hearings precisely because he was bred in some underground laboratory to become a Ken Doll in robes. Roberts somehow managed to look substantive and funny, boyish and—say it with me now—humble, as though he'd been practicing for those Senate hearings in his bathroom mirror since puberty (which he probably had been). Alito looks oddly as though he's never practiced for these hearings in his life.
There is, for instance, the surreal lapse during his opening statement, when he blurts out—sans explanation—that his classmates at Princeton were spoiled and privileged and far less sensible than the folks in his working-class neighborhood back home:
After I graduated from high school, I went a full 12 miles down the road, but really to a different world when I entered Princeton University. A generation earlier, I think that somebody from my background probably would not have felt fully comfortable at a college like Princeton. But, by the time I graduated from high school, things had changed. And this was a time of great intellectual excitement for me. Both college and law school opened up new worlds of ideas. But this was back in the late 1960s and early 1970s. It was a time of turmoil at colleges and universities. And I saw some very smart people and very privileged people behaving irresponsibly. And I couldn't help making a contrast between some of the worst of what I saw on the campus and the good sense and the decency of the people back in my own community.
Did anyone vet this statement? Because if you parse it closely, it looks like he's maybe saying this:
After I graduated from high school, I went a full 12 miles down the road, but really to a different world when I entered Princeton University. (Damn snobs.) A generation earlier, I think that somebody from my background probably would not have felt fully comfortable at a college like Princeton. (And as I shall now illustrate, I was not.) But, by the time I graduated from high school, things had changed. And this was a time of great intellectual excitement for me. Both college and law school opened up new worlds of ideas. (Ideas, love 'em. It's the people I hate…)But this was back in the late 1960s and early 1970s. It was a time of turmoil at colleges and universities. (Damn hippies.) And I saw some very smart people and very privileged people behaving irresponsibly. (Smart and privileged people who went on to become yourselves, ladies and gentlemen of the Senate.) And I couldn't help making a contrast between some of the worst of what I saw on the campus and the good sense and the decency of the people back in my own community. (And so that is why I joined Concerned Alumni of Princeton and why, moreover, I am still so inflexible and judgmental today!)
Roberts spoke without notes on his opening day and rocked. Alito speaks from prepared comments and somehow appears to be working off a first draft. Roberts came off as simply too "nice" to have written all those blistering, hateful memos in the '80s. Alito delivers his two "jokes" as though he's docking someone's allowance. It doesn't help, either, that his facial expression throughout the afternoon is one of ferocious, determined impassivity. Unlike Roberts, who'd mastered the boyish "I'm listening" head tilt or the impish "Hey, you're funny!" acknowledgment of every senatorial joke, Alito keeps his eyes fixed somewhere on the middle distance; like while all this is happening around him, he is really very busy recalling a rather violent segment about mating lemurs on Animal Planet.
There aren't a lot of other surprises today: Republicans go on and on about how easy it is for judges to know what "the law" is and what "the Constitution" requires, while Democrats rave about the centrist pragmatism of Sandra Day O'Connor. Not one Democrat on the committee, by my count, misses a chance to quote her "blank check" line from the Hamdi opinion. Senators Sam Brownback, R-Kan., and Tom Coburn, R-Okla., stage a little abortion-off, in which each fights to become the Most Pro-Life Man in the World (for anyone scoring at home, Coburn does not actually cry this time, but he does sniffle audibly). Frank Lautenberg, D-N.J., agrees to introduce Alito, which he does graciously, but then stops short of endorsing him. Democrats fret about executive power in wartime, while Republicans are seemingly too worried about the threat of the Imperial Court to be bothered by the reality of an Imperial Presidency.
The central constitutional tension today: Does the court exist to protect the big guy or the little guy? John Roberts' strategy in response to this inquiry was the masterful, "The court protects no guy; it protects the Constitution." Early indications suggest that Alito's plan is to actually become the little guy: "Sure, Roberts said he was humble. But he was all spinning plates and juggling fire and playing the ukulele while he was doing it. Me? I'm just a poor kid from Jersey, and I've got no tricks." It's not totally clear how the whole "baseball metaphors are way too flashy for me" strategy will play out over the week. But Alito hasn't much choice, since Roberts stole all the best lines and the best jokes and the best legal theories.
Darn Roberts … It's always those rich kids.
Dahlia Lithwick writes about the courts and the law for Slate.