Washington Democrats on Tuesday all but conceded the Supreme Court confirmation of Samuel Alito, but signaled they will use the Senate debate that begins today to focus on President Bush's domestic spying program and their predictions that Alito will be too pliant in supporting it.
The Senate Judiciary Committee voted along party lines to recommend Alito's confirmation, depriving him of the bipartisan support enjoyed by most current justices and setting the stage for a sharply partisan Senate debate this week. The committee's 10-8 vote, which was anticipated, occurred after stinging criticisms by Democrats, including the three who had supported Chief Justice John Roberts last fall.
Democratic leaders indicated they will attack Alito's record in the Senate floor debate expected to last until Friday or later. But they strongly hinted there will be no filibuster, a parliamentary tactic that conceivably could enable Democrats to block the confirmation in a 100-member chamber where Republicans hold 55 seats.
Minority Leader Harry Reid, D-Nev., and Sen. Edward Kennedy, D-Mass., said each senator's decision on Alito is "a vote of conscience," a term used when the leadership does not press for party solidarity. Reid would not rule a filibuster in or out, but top Democratic staffers said they saw little chance of one.
It is unclear whether Democrats would have tried a filibuster of Alito under any circumstances. But an accord reached last year between seven Senate Democrats and seven Republicans, which averted a showdown over judicial filibusters in general, rendered an Alito filibuster virtually impossible. Several of the "Gang of 14" members, as they are called, said they would oppose a filibuster of the nominee, and their pact gave them the clout to prevail.
Republicans predicted the Senate will confirm Alito by a much narrower margin than the 78 to 22 vote Roberts received on Sept. 29, and they berated Democrats for making a Supreme Court nomination a largely partisan matter. As of Tuesday, the only Democratic senator to publicly announce his support of Alito was Ben Nelson of Nebraska.
Senators agreed that one reason Alito's nomination is more divisive than Roberts' is that Alito, 55, is slated to replace the swing-voting Justice Sandra Day O'Connor, a move that could move the court notably to the right. Roberts succeeded a fellow conservative, William Rehnquist.
At Tuesday's committee meeting, Democrats repeatedly criticized Bush's use of the National Security Agency to conduct warrantless eavesdropping on U.S. citizens, the subject of committee hearings scheduled for next month. As an appellate court judge for 15 years, Democrats said, Alito backed broad executive powers, making him a poor Supreme Court choice when the White House needs to be reined in.
"This is a nomination that I fear threatens the fundamental rights and liberties of all Americans," said Sen. Patrick Leahy, D-Vt., who had voted for Roberts. Saying President Bush "is in the midst of a radical realignment of the powers of the government and its intrusiveness into the private lives of Americans," Leahy concluded: "I will not lend my support to an effort by this president to move the Supreme Court and the law radically to the right and to remove the final check within our democracy."
The other two committee Democrats who had backed Roberts - Wisconsin Sens. Russ Feingold and Herb Kohl - also said Alito appears far more likely than Roberts to vote to expand presidential powers, limit civil rights and possibly allow states to outlaw abortion.
"I fear that a Justice Alito will narrow our rights, limit our freedoms and overturn decades of progress," Kohl said. Feingold said Bush "thinks his executive power permits him to violate explicit criminal statutes by spying on Americans without a court order." The Supreme Court may ultimately decide such matters, Feingold said, adding that he and others "repeatedly asked Judge Alito whether the president can violate a clear statutory prohibition such as the Foreign Intelligence Surveillance Act and the ban on torture. He never answered the question."
Reid, who opposed Roberts and is not on the Judiciary Committee, told reporters that: "I have no confidence he will serve as real check on the abuse of presidential power that we see so prevalent today. ... President Bush continues to believe that he is above the law and above the Constitution."
Judiciary Committee Republicans defended Alito, even as some reserved judgment on Bush's surveillance practices. Sen. Lindsey Graham, R-S.C., told colleagues, "I am very concerned that the war resolution is being interpreted overly broad," a reference to a congressional vote that Bush cites as justification for his NSA policies. Graham called Alito an outstanding nominee, and chastised Democrats for failing to give him bipartisan backing similar to that enjoyed by former President Bill Clinton's nominees, Ruth Bader Ginsburg and Stephen Breyer.
"What's changed?" Graham said. "It's not the quality of the nominees, it's the quality of the process." He said Democrats want to make "a campaign issue of the decisions on the court." In that contest, he warned Democrats, "we'll clean your clock."