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Baited Breath

Did Alito pass his hearings?

Cracking down on lobbyists is a hot issue in Washington these days, but it hasn't quite made it to the Senate Judiciary Committee. On day one of his confirmation hearing, Samuel Alito introduced America to his fine-looking family, spread across a row behind his right shoulder. But that tall, chinless man who could be frequently glimpsed over Alito's other shoulder wasn't some Alito brother-in-law. It was Ed Gillespie, K Street's most connected post- Abramoff Republican and part of the White House's large team of Alito handlers and spinners shepherding him through the Senate.

While Alito's jargon-laden monotone seemed to have an anesthetizing effect on his critics--which explained much of his success this week—Gillespie and the White House's rapid-response operation also helped. As Democrats tried to pin down Alito on abortion, criticized him for an alleged conflict of interest, and nailed him for his executive branch sycophancy, Gillespie and his team—BlackBerries always crackling--huddled frequently with GOP senators and their aides, crafting real-time responses.

The result was that, after three days of hearings, Alito and his defenders on the Committee had successfully deflected the shotgun spray of attacks fired by Democrats. They defanged the major ethics issue—the accusation that, as a judge, Alito should have recused himself from a case involving Vanguard, a company in which he had investments—by simply pointing to the numerous legal ethicists who have declared the charge bunk. Alito's explanation of why he once argued that a police warrant empowered officers to search a ten-year-old girl at the scene of a drug bust didn't sound as extreme as it had when liberal critics first presented it. His narrow reading of the Commerce Clause, which led him to write a controversial dissent proclaiming that Congress can't regulate machine guns, hasn't turned into much of a rallying cry for a filibuster, either. But, despite the success of the K Street-led spin operation and Alito's bland geekiness, there were a few morsels in Alito's hearing transcript that Democrats could turn into filibuster bait.

THE FIRST FERTILE area for Democrats is Alito's responses to questions about Roe v. Wade. The hearings have been admirable for the honesty with which a few Republicans attacked Roe head-on. Senators Sam Brownback and Tom Coburn made it clear they think Roe was wrongly decided, is not protected by stare decisis, and should be overturned. Most Republicans agree with that analysis but refuse to say so publicly, especially in the context of a Supreme Court hearing. Alito himself didn't concur with Brownback and Coburn, but his comments should be almost as troubling for Democrats. If John Roberts's abortion code words were that Roe is "settled law," Alito's were that stare decisis is not an "inexorable command," an echo of a Louis Brandeis quote used by William Rehnquist in his 1992 argument for overturning Roe. Both Roberts and Alito left themselves wiggle room on the issue, but the "settled law" sound bite sent a message that Roberts favors the status quo. "Inexorable command," on the other hand, is a reminder that a Justice Alito would not be so deferential to precedents he finds unconstitutional. No Democrat can accuse Alito of disingenuousness if he's confirmed and one day casts a vote to reverse Roe.

The only issue during three days of hearings that both seemed to rattle Alito and make him seem untruthful was what he remembered about joining the now-infamous Concerned Alumni of Princeton (CAP), the group of Ivy League graduates who fought against blacks and women entering Princeton in the 1970s and 1980s. Alito bragged about his membership in the group in his 1985 Reagan administration job application, but, as he told the Judiciary Committee several times, "I have no specific recollection of joining the organization." (Whenever he said this, his muscles tightened and his face assumed an awkward hostage-like expression.) Judging from the rest of the application, Alito was a bit of a suck-up, so it's more likely that he added a mention of the group only to catch the eye of the Reagan conservatives renewing his application and now finds it untenable to admit to the deception. CAP started as an issue about Alito's views on race, but it has turned into an issue about his credibility—one that Democrats could find useful as part of a larger filibuster argument.

But, rather than fight about abortion or Princeton admissions, the Democrats could try to ignite a grander ideological battle over the odd and timely issue that dominated many exchanges in the hearings: "the unitary executive theory." (How long before Frank Luntz re-brands this scary-sounding phrase?) The unitary executive theory, popularized by Federalist Society founder Steven Calabresi, traces its origins to the monarchist sympathies of Alexander Hamilton and posits that the president is constitutionally entitled to total control over the executive branch. In the Reagan administration, when the idea first took flight among conservatives, it was used largely to argue that Congress's ability to insulate executive branch agencies from presidential meddling should be curtailed. The Bush White House has seized upon that argument with relish, referencing it in numerous signing statements. And other officials—such as Dick Cheney's chief of staff, David Addington, and former Justice Department appointee John Yoo—have also expanded the thesis to justify many of the president's terrorism-related decisions.

Like Bush, Alito is a unitarian, as devotees of the theory are known. "We were strong proponents of the theory of the unitary executive, that all federal executive power is vested by the Constitution in the president," he said in a speech to the Federalist Society in 2000. "And I thought then, and I still think, that this theory best captures the meaning of the Constitution's text and structure." For Democrats, Alito's deference to the president and his worship of Article II might be attractive grounds on which to try to stop his nomination. After all, Democrats note, the argument has the advantage of dovetailing with their current critique of Bush as an unchecked, out-of-control president, as well as their case against the "corrupt" GOP congressional leadership that acts as a rubber stamp for Bush policies. Under this scenario, stopping Alito could turn into a proxy war for stopping Bush. Which is one reason that a filibuster, though not a likely scenario, might still tempt Democrats.

This article appeared in the January 23, 2006, issue of the magazine.