The hearings have been awful. Chief Justice Charles Evans Hughes said that "90% of judicial decisions are based on bias, prejudices, and personal and political motivation, and the other 10 % is based on the law." Most of the American public does not see 90% of Alito.
You can never go wrong by underestimating the Democrats. Whether it be Joseph Biden's long, self-aggrandizing speecher, or Diane Feinstein's inability to pose her own questions on the abortion area, or Russell Feingold's unfamiliarity with legal decisions, the Democrats utterly failed to show how the Court and country will change if Alito replaces O'Connor.
The only way, if there is any way, that the Alito nomination can be derailed is if there is a smoking gun.
The Bush Administration refuses to divulge 45 specific documents written by Samuel Alito when he was in Reagan's Justice Department. The Senate should not conclude the nomination process without getting those documents. We have every right to assume that the documents the White House withheld are the most damaging. That Samuel Alito is bright, personable, Catholic and a devoted son and husband, is adroit at avoiding a question, is interesting, but less important than where he votes will lead to. His nomination is far more important than the nominations of Roberts, Thomas and Scalia or the failed nomination of Robert Bork. He fits the seat of the swing vote in a Court dominated by 5-4 decisions. At 50 years old, he can significantly influence a solid radical conservative Court that will control how many of us live for the next 25 years.
There is both a personal and a paper trail.
The years Alito spent in government, submitting memoranda, supervising other attorneys' work, on behalf of the Reagan administration, to overrule Roe, permit prayer in schools, expand Presidential powers and punish dissidents are reflected in thos 45 documents. He was not just any lawyer working for the government - he was, as were the other attorneys who came into the office after Reagan, was recruited by Ed Meese because he is a true believer. He was selected primarily for his ideology to supervise the political positions taken. Of course, the memoranda express his personal views. His many decisions more than confirm those views.
Unlike Roberts, he has spent years on the bench with a score of decisions on nearly every issue he may face on the Court. But the Democrats have been unable to show the consequences of those decisions. His decisions, like Bork's, do not tell the measure of the man and his true beliefs. We saw the emotion and power behind Bork's briefs only after he left the Reagan years documents will the emotion and passion before he got on the Court. He wouldn't be there if they did not. It insults him to claim otherwise.
Scalia, Thomas and Rehnquist - and Roberts and Alito in their Circuit Court decisions - use words and terms like "textualists", "judicial restraint" and "stare decisis" when it suits them; when it does not, they assert the Court and the President's rights over the rights of the Congress. Alito does not favor judicial restraint where Congress has passed laws he disagrees with - he does not favor judicial restraint when it comes to giving the President the broadest of powers - he refused to admit Roe v. Wade is "settled law."
Alito's Circuit Court decisions make clear he is against federal regulation - whether it be in the environmental, administrative or economic areas. The Federalist Society, of which he is a leading member, had a program entitled "Rolling Back the New Deal: A Review of Economic Regulation." "Let's Do Away with the SEC" was the headline of a Federalist newsletter. His District of Columbia Circuit decisions adhere to the line of cases, interpreting the Commerce Clause that lead to the dismantling of the administrative state. More careful than either Scalia or Thomas, he can emerge as the conservative's cover for the extreme positions of Scalia and Thomas, leading the already-started rejection of the New Deal Court.
Most troublesome is his view of a President with expanded powers - a position welcomed by Bush. Alito's memoranda thus far released urged that Congress should bow to the power of the president, in language to the right of even Rehnquist and the conservative Supreme Court majority in its 2004 Hamdi case.
His commitment to judicial restraint is similar to the views of Scalia and Thomas, those Justices who most often voted to strike down laws passed by Congress. His close Federalist colleagues Robert Bork, the "Chief Justice in Exile," and Scalia and Thomas, who seek to bring back the Constitution in Exile, rely on similar legal concepts to arrive at the same conclusion.
We do know where Alito will likely vote on the important cases facing the Court in 2006, if he gets to the Court quickly.. In the Court's first week, October 5, 2005, it heard Bush's challenge to the "right to die" law. Two abortion cases, including a partial birth abortion case, will go against abortion advocates (there would have been a different result with O'Connor) without overturning Roe.
The Court will probably hear a case testing the President's power to capture and hold "enemy combatants." O'Connor wrote the war did not give the President a "blank check" to indefinitely hold detainees. Alito, while paying homage to the language, believes otherwise.
There is a capital punishment case where Alito, replacing the swing O'Connor vote, is likely to vote to reject a DNA argument and affirm a doubtful old conviction. The reach of federal anti-discrimination laws and the Americans With Disabilities Act will again be challenged - O'Connor was recently the fifth vote to expand those rights - Alito will surely go the other way.
The Democrats, stung by criticisms they were too soft on the first day, tried to be harder on the second. But, except for Schumer and Kennedy (and they were not great), the rest of the Senators were terrible.
We know how Judge Alito will vote on the issues of today and for the next perhaps three decades. Congress should explore these withheld documents so the American people will (in spite of the Democrats) know exactly who is being nominated.