I’m not even talking to you now. Graham brought to the surface what is always lying just below it at televised Supreme Court confirmation hearings: namely, that the Judiciary Committee members are never merely talking to the nominee; they are always talking to their constituents as well.
The confirmation hearing as we know it today evolved over the past century. In his excellent book The Selling of Supreme Court Nominees (1995), John Anthony Maltese lays stress on the inescapably political character of the nomination process. Since the early days of the Republic—starting with the Borking of George Washington’s appointee for chief justice, John Rutledge—Supreme Court nominations have been fiercely fought over by rival senatorial factions. However, only in the twentieth century did these fights become public spectacles. A pivotal event, in Maltese’s account, was the passage of the Seventeenth Amendment, in 1913, which changed the method by which senators come into office—from appointment by the state legislature to direct election—and intensified their activity as jumpy instruments of public will. The first public confirmation hearing took place in 1916, for Louis Brandeis (the first Jew to be named to the high court). Dozens of witnesses, pro and con, flocked to the hearing, but Brandeis himself did not choose to come. His advisers felt, Maltese writes, that “to do so would give the appearance that Brandeis was on trial.” Not until 1925 did a nominee—Harlan Fiske Stone—testify before the Judiciary Committee, and thirty more years went by before it became customary, if not obligatory, for the nominee to testify. Between 1930 and 1955, four nominees testified and fifteen didn’t. Since 1955, when the second John Marshall Harlan was nominated, every nominee has testified.
Brandeis’s advisers were right: the Supreme Court nominee, sitting alone at a table facing a tribunal of legislators seated above him on a dais, is on trial. But so, of course, are the legislators. Each one knows that when he is up for reelection voters will remember (or someone will remind them of) his words and his demeanor. Graham presently abandoned all pretense of examining Roberts. “Let’s talk about righting wrongs here,” he said to the folks back home, and went on:
I think it stinks that somebody can burn the flag and that’s called speech. What do you think of that?
Roberts: Well [laughter]. We had the Flag Protection Act after the Supreme Court concluded that it was protected speech.
Graham: Show me where their term “symbolic speech” is in the Constitution.
Roberts: Well, it’s not.
Graham: It’s not. They just made it up, didn’t they? And I think it stinks that a kid can’t go to school and say a prayer if he wants to voluntarily. What do you think about that?
Roberts: That’s something that’s probably inappropriate for me to comment on.
Graham: What do you think Ronald Reagan thought of that?
Roberts: His view was that voluntary school prayer was appropriate.
Graham: I think it’s not right for elected officials to be unable to talk about or protect the unborn. What do you think of that?
Roberts: Well, again, Senator …
The fifty-year-old Graham has a gift for comedy—he delivers his lines as if he were working a nightclub crowd—and exudes an air of cynicism that right-wing politicians do not usually permit themselves, and that is very refreshing. The right-wing politician Sam Brownback has a more conventional style. During his questioning of Roberts, he paused to say that because of Roe v. Wade “we now have forty million fewer children in this country to bless us with” and that “eighty percent to ninety percent of children prenatally diagnosed with Down’s syndrome never get here—never get here.” Roberts as gracefully declined to engage with the anti-abortion Republicans as he had declined to engage with the pro-choice Democrats. He was like the host of a successful and elegant party. Everybody could go home feeling good and good about himself. No one had spilled his champagne or been rude. When, four months later, Roberts joined Scalia and Thomas in their dissent to the majority opinion in Gonzalez v. Oregon, which upheld the state’s law permitting assisted suicide, no one even seemed to feel betrayed. Good parties cast lovely long shadows.
2
The Democrats came home from the hearing for Samuel Alito as if they had been beaten up by a rival gang in a bar. At the Roberts hearing, they had been vigorous and assured, sometimes even magnificent, in their defense of liberal values. At the Alito hearing, they were erratic and disoriented, as if suffering from a malaise they had fallen into between the two proceedings. In fact, what they were suffering from was the nominee. In his opening statement, Alito told this story:
During the previous weeks, an old story about a lawyer who argued a case before the Supreme Court has come to my mind, and I thought I might begin this afternoon by sharing that story. The story goes as follows. This was a lawyer who had never argued a case before the court before. And when the argument began, one of the justices said, How did you get here? Meaning how had his case worked its way up through the court system. But the lawyer was rather nervous and he took the question literally and he said—and this was some years ago—he said, “I came here on the Baltimore and Ohio Railroad.”
Throughout the hearing, in answer to almost every question, Alito said, in effect, that he had come here on the Baltimore and Ohio Railroad—and thus defeated every attempt to engage with him in dialogue. Each answer ended the matter then and there. He was like a chauffeur who speaks only when spoken to, and doesn’t presume to converse. While Alito listened to questions, his face was expressionless. When giving answers, he spoke in a mild, uninflected voice. His language was ordinary and wooden. His manner was sober and quiet. He was a negligible, neutral presence.
It seemed scarcely believable that, in his fifteen years on the federal bench, this innocuous man had consistently ruled against other harmless individuals in favor of powerful institutions, and that these rulings were sometimes so far out of the mainstream consensus that other conservatives on the court were moved to protest their extremity. Or that in 1985, on an application for a job in the Reagan Justice Department, he had written, “I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that … the Constitution does not protect a right to an abortion.” And, further, that “in college I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment.”
If Roberts was a pill the Democrats could agree to swallow even before tasting its delicious sugar coating, and Harriet Miers was a pig in a poke that some Democrats were prepared to buy, Alito was a nominee no Democrat could accept. But no Democrat could touch him. The impassive Alito paralyzed the Democrats. Their hopes of blocking the nomination by bringing forward two stains on his character—his membership in a notorious organization called Concerned Alumni of Princeton, which opposed the admission of women and minorities; and his failure to recuse himself in a case involving the Vanguard company, in which he had a financial stake—were decisively dashed. The stains proved too small—the garment remained presentable.
Twenty years ago, William Rehnquist, at the hearing for his elevation to Chief Justice, offered a model for how to parry embarrassing questions about your past. When asked about reports that as a young poll watcher he had harassed minority voters, Rehnquist shook his head sadly and said, “No, I don’t think that’s correct,” and when asked about a restrictive clause in the lease to his country house barring “members of the Hebrew race” he said, “I certainly don’t recall it.” Alito, similarly, didn’t recall joining the Concerned Alumni. “I have racked my memory,” he said each time he was asked why he had joined. Nor could he explain why he hadn’t recused himself in the Vanguard case. The Democrats realized too late that their pursuit of the Concerned Alumni and Vanguard matters was a trap. This time, the Republican bridesmaids didn’t merely simper. They hastened to close ranks and attack the Democrats for their cruel badger
ing of Alito.
Lindsey Graham rose joyfully to the occasion. Rules of seniority placed him late on the program (he was elected to the Senate in 2002) and gave him the material for great shtick. He did a little preliminary routine with Vanguard (“Why would Judge Alito sit down in the corner of a room and say, I think I’ve got a conflict, but I’m just going to let it go and hear the case anyway?”) and moved on to the Concerned Alumni:
Graham: Now this organization that was mentioned very prominently earlier in the day, did you ever write an article for this organization?
Alito: No, I did not.
Graham: Okay. And some quotes were shown, from people who did write for this organization, that you disavowed. Do you remember that exchange?
Alito: I disavow them. I deplore them. They represent things that I have always stood against and I can’t express too strongly …
Graham: If you don’t mind the suspicious nature that I have is that you may be saying that because you want to get on the Supreme Court; that you’re disavowing this now because it doesn’t look good. And really what I would look at to believe you’re not—and I’m going to be very honest with you—is: How have you lived your life? Are you really a closet bigot?
Is Lindsey Graham really a closet liberal? The sense of double entendre that always faintly hovers over Graham’s speech is almost palpable in this passage. “I’m not any kind of a bigot, I’m not,” Alito said. Graham assured Alito that he believed him, not because of his good reputation but because of “the way you have lived your life and the way you and your wife are raising your children.” Then Graham had the audacity to cite—not by name—the Abramoff scandal as an instance of the kind of guilt by association that Alito was being subjected to:
We’re going to go through a bit of this ourselves as congressmen and senators. People are going to take a fact that we got a campaign donation from somebody who’s found to be a little different than we thought they were—and our political opponent’s going to say, “Aha, I gotcha!” And we’re going to say, “Wait a minute. I didn’t know that. I didn’t take the money for that reason.” … We have photos taken with people—and sometimes you wish you didn’t have your photo taken. But that doesn’t mean that you’re a bad person because of that association. Judge Alito, I am sorry that you’ve had to go through this. I am sorry that your family has had to sit here and listen to this.
It was at this moment that Mrs. Alito got up and left the hearing room to have her famous cry. The TV camera barely caught the image of her figure brushing past two seats, and the TV watcher would have attached no significance to the sight. Unlike the forbiddingly beautiful and elegant Mrs. Roberts—who sat motionless during her husband’s hearing, with a look of intense, almost anxious concentration on her face—the buxom Mrs. Alito fidgeted and looked around and never seemed to be fully engaged with the proceedings. As it was later reported (around the globe), Mrs. Alito had been so upset by the bad things the Democrats had said about her husband, and so moved by Graham’s defense, that she had to leave in tears. But to anyone who had observed Mrs. Alito’s demeanor in the days before the incident, Charles Isherwood’s comment in the Times—“Surely grinding boredom may also have played a part in her scene-stealing eruption and flight from the Senate chamber”—had the ring of truth.
The Alito hearings were indeed grindingly boring. Although subjects of the highest interest were introduced—spying on citizens, torture, abortion, the right to privacy, civil rights, discrimination, executive power—the talk was never interesting, since Alito could never be drawn. Like Roberts, he eluded the Democrats’ attempts to pry his judicial philosophy out of him, but, unlike Roberts, he offered no compensatory repartee. He was always just a guy answering questions very carefully. Over and over, the Democrats quizzed Alito on his pro-police, pro-prosecution, and pro-employer opinions. (The legal scholar Cass Sunstein analyzed forty-five of Alito’s dissents in cases where individual rights and institutions were in conflict and found that in thirty-eight of them Alito took the side of the institution.) And over and over—like an accountant patiently explaining why the figures on a tax return are correct—Alito spared no dry detail in justifying his reasoning.
As the hearings wore on, and the fight between the Democratic and Republican committee members took on heat, Alito became an almost peripheral figure. The charge that the Democrats were cruelly badgering Alito was in fact unfounded. They had been a lot tougher on Roberts. At one point in the Roberts hearing, Joe Biden pushed Roberts so hard—indeed was so fresh to him—that Specter had to intervene and say, “Let him finish his answer, Joe.” But, when questioning Alito, Joe practically tugged his forelock. “Presumptuous of me to say this,” “You’d know better than I, Judge,” “I don’t mean to suggest I’m correcting you,” “I’m not presuming to be as knowledgeable about this as you,” “All I’m suggesting is,” “You’ve been very gracious” are among the examples of Biden’s nervous servility. (In the second round of questioning, in a gesture of propitiation that can only be called deranged, Biden put on a Princeton cap.) But the very idea of questioning Alito’s probity left the Democrats open to charges of bullying. Where the fair Roberts had been fair game, the mousy Alito was out of bounds. Why don’t you pick on someone your own size? By the time the Democrats realized their tactical error, it was too late to correct it. That the judge who consistently rules against little guys should become the confirmation hearing’s own little guy was one of the proceeding’s more delicious (and, for the Democrats, bitterest) ironies.
* * *
On the Senate floor two weeks later, with Alito no longer there to drain their blood, the eight Democrats spoke their fears with forceful urgency. Kennedy, Leahy, Durbin, and Feinstein were especially eloquent, and Biden behaved himself. Over the days of debate, the flame of filibuster flickered and subsided, and the ten Republicans, smelling victory, showed the losers no mercy. Jeff Sessions, who had been one of the quieter presences in both the Roberts and the Alito hearings, now came to demonic life:
It is almost amusing as we have gone through the committee process to see them grasp in desperation to find something to complain about with Judge Alito. None of them could agree on what they didn’t like. They bounced all over the place mostly. It sounded like they didn’t like President Bush. They were having grievances about Abu Ghraib prison, which President Bush had nothing to do with.
Sessions went on:
They have been hankering for Harriet Miers, which is rather odd, I think. They have suggested somehow that some right-wing cabal caused President Bush to withdraw her nomination.… They have complained steadfastly that Judge Alito somehow is a tool of President Bush to defend his national policy and his war on terrorism and that Judge Alito is going to be a part of his efforts to arrogate powers to the executive branch. Who has been at President Bush’s right arm for five years? It’s Harriet Miers.… She has been involved in every one of these decisions about executive branch powers, National Security Agency wiretaps of Al Qaeda telephone conversations. She has been part of all of that. You think they would have let her come through here? They say: Oh we think she would be a fine nominee. What would they have done to her?
(Sessions had a point. The Democrats’ tears for the martyred Harriet Miers had something of the crocodile quality of the Republicans’ tears for Mrs. Alito’s. The Democrats’ outrage over Alito’s dissent in the case of Doe v. Groody was similarly transparent. The case involved the warrantless strip search of a ten-year-old girl and her mother during a drug bust. Alito sided with the police, who argued that an affidavit gave them the authority to search the mother and daughter. The Democrats treated the incident as if it were the Rape of Nanking.) Other Republicans made other gloating speeches about the hapless Democrats, and, of course, none of it mattered because there would be no filibuster and Alito would be confirmed by the Republican majority in the Senate. John Kerry arrived exhausted from an economic conference in Davos to try to rally the minority troops. Sessions
, apparently unaware of Kerry’s return, jeered at the “international” filibuster “hatched in Davos, Switzerland, where Senator Kerry now is with those masters of the universe trying to figure out the world economy. Maybe they ought to spend more time trying to get the oil prices down than worrying about conjuring up a filibuster of a judge as able as Judge Alito.”
When it was Biden’s turn to speak, he quoted a remark that Alito had made during the hearing that he had not been alone in finding striking. Biden had been questioning the nominee about his position in a case involving the Family and Medical Leave Act, and had asked whether he and his fellow judges on the panel had taken into consideration the fact that pregnant women sometimes need leave for bed rest during the last two months of pregnancy. Alito replied that, no, they had not considered that, and added, “We can’t know everything about the real world.” The remark leaped out of the gray blur of Alito’s technocratic speech like a confession that can no longer be withheld. It confirmed what we already knew about this dour and oddly innocent man.
Perhaps nowhere is the sense of Alito’s alienation more palpable than in his dissent in Riley v. Taylor (2001), the case of a black man who was convicted of murder (and condemned to die) by an all-white jury, and who had appealed the verdict on the ground of discrimination. The appeals court, ruling en banc, accepted the possibility of discrimination and reversed the conviction. But Alito couldn’t see what the majority saw. He argued that his colleagues had been wrong to be influenced by the fact that within a year three other murder cases in the county had been tried by all-white juries. He wrote:
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