Confirmation Report

Revenge of the Nerd
The law, lawyers, and the court.
Jan. 10 2006 7:38 PM

Confirmation Report

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Snooze alarm 
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Snooze alarm

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.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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. While Sen. Patrick Leahy, D-Vt., generates a wisp of tension with this morning's inquiry into the judge's membership in Concerned Alumni of Princeton, by the time Ted Kennedy, D-Mass., has finished his questions about executive power, any appearance of fire or passion is gone from both the nominee and the senator. Alito is crushing the Democrats with unrelenting tedium and a demonstrable love for material they don't really understand.

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Anyone can manage to be boring on boring subjects; Alito has seemingly perfected the art of being boring on controversial ones. Executive power in wartime? Boring. His deeply felt passion for Robert Bork? Boring. His incendiary job application from 1985? So boring that he's actually forgotten it. His resistance to the constitutional principle of one man, one vote? It was based on some stuff his dad told him. He doesn't fight to defend these ideas, he just slumps even lower in his chair and looks more earnest. 

Alito can be deft, however. He has a funny little riff on how the notion of "super-duper stare decisis" sounds like a laundry soap. He says, three times, that stare decisis—while important—is not an "inexorable command." It's his way of pushing back. When Arlen Specter, R-Pa., asks this morning whether the constitution is a "living thing," his response is wonderful: "I think the Constitution is a living thing in the sense that matters, and that is that it is—it sets up a framework of government and a protection of fundamental rights that we have lived under very successfully for 200 years." The Constitution is living because we live under it. When Herb Kohl, D-Wis., asks after lunch what he meant in his 1985 job application about the need for the government to protect "traditional values," he responds:

I think a traditional value that I probably had in mind was the ability to live in peace and safety in your neighborhood. And that was a big issue during the time of the Warren court. And it was still a big issue in 1985 when I wrote that statement, because that was a time of very high crime rates. I think that's a traditional value. I think the ability of people to raise a family and raise their children in accordance with their own beliefs is a traditional value. I think the ability to raise children in a way that they're not only subjected to—they're spared physical threats, but also psychological threats that can come from elements in the atmosphere, is a traditional value. I think that the ability to practice your own conscience is a traditional value.

"Traditional values" means the right to be free from crime and bad psychology in the atmosphere.

And when Alito is asked whether the president is above the law during wartime, he somehow satisfies his questioners by saying that he is not, without ever laying out what the law might be or how he might begin to analyze it. Wait, at one point he analogizes executive power to a table. The analogy has the twin virtues of being both incomprehensible and boring. In what may be the high point of the morning, Alito masterfully turns his failure to recuse himself from a case involving Vanguard Mutual Fund—despite a pledge to do so—into a reason to canonize him. The Vanguard case slipped by his radar because it was a pro se case (the plaintiff had no counsel), and such cases warrant super extra-special scrutiny; moreover, he was so appalled by his slip that he instituted a conflict-reporting system in his chambers, complete with red forms to be filled out, so that no such impropriety could ever occur again.

It seems that committee Democrats are being harmed by their new emphasis on executive overreaching—it means they have lost whatever focus they once had on the issues of privacy and abortion—but they haven't got real traction on the executive-authority questions either. The public doesn't seem to care, and the senators don't fully understand the concepts—like that of the "unitary executive"—they are attempting to explore.

At bottom, the only thing in the Senate that seems to ruffle the Alito feathers today is poor old Princeton, which takes yet another beating. Alito's defense of his membership in CAP is that Princeton chucked ROTC off campus in its drunken pot-smoking unshaved anti-Vietnam orgy. Like Clarence Thomas, the nominee is almost proud of the fact that he was scarred into his present-day political ideology by campus life in the '60s.

Committee Republicans don't exactly wow us, either: Mike DeWine, R-Ohio, uses his time for a protracted grumble about general stuff in the world that annoys him (cert pools, circuit splits ...), and Jeff Sessions, R-Ala., struggles to get Alito to promise that it wouldn't be that activist to overturn Roe. The almost laughable Republican position throughout the hearings is that Alito can't possibly be anti-women/minority/criminal defendant/little guy because there are 3/4/7/whatever single-digit-number-of cases among almost 5,000 in which he sided with them. It's a twist on the "Some of my best friends are ... " line. And here I thought that line stopped working in the '60s. Right about the time when colleges let in women and started going downhill.

As I edge up to my filing deadline, it's 6 p.m. and Lindsey Graham, R-S.C., an alleged ally, has begun to offer rambling speeches peppered with unanswerable queries on the issue of enemy combatants and executive authority in wartime. I would love to ask the nominee if eight consecutive hours of threats, coercion, good-cop/bad-cop, bad cafeteria food, and more threats constitutes torture under domestic or international law. But I suspect he could make even that answer boring.

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