Foes ponder next move in fight to defeat Alito

Tom Curry National affairs writer • Profile • E-mail

WASHINGTON - As the interrogation of Supreme Court nominee Samuel Alito ended Thursday he was not just four days closer to confirmation than he’d been at the start of this week, but the momentum had shifted markedly in his favor.

Groups working to defeat Alito were naturally not agreeing with the notion that he is likely to win confirmation.

But during his hours of testimony, the nominee had not given his foes one damning sound bite to use in the anti-Alito TV ads that will run next week.

The most vivid personal image to emerge from the hearings was that of Mrs. Alito, who was apparently driven to tears Wednesday by the insinuation from Sen. Edward Kennedy, D-Mass., that Alito may have agreed with some of the bigoted statements in articles in a magazine published by a group called the Concerned Alumni of Princeton (CAP).

Alito belonged to CAP and listed the group on a job application in 1985 when he was seeking a post in the Reagan Justice Department.

Anti-Alito strategists brushed off the persistent questions from reporters Thursday about whether Kennedy’s insinuation — followed by Martha-Ann Alito's tears — had created sympathy for Judge Alito.

Shifting targets
Having grilled Alito on National Security Agency eavesdropping, the death penalty, and other topics, Sen. Patrick Leahy, D- Vt., shifted focus Thursday, arguing that senators should be worried about “whatever he said to Dick Cheney, Karl Rove and Scooter Libby when they sat down with him” during his interviews to be Bush’s nominee to replace Justice Sandra Day O’Connor.

Libby is under indictment for obstruction of justice in the investigation of the leak of the identity of CIA employee Valerie Plame.

Asked why he brought up Libby’s name in connection to Alito’s, Leahy said, “what was it with Harriet Miers, they weren’t sure how she’d vote but with him (Alito) they felt sure?”

Democrats seemed to fight much of this week’s battle in terms of proxies for Alito, asking him to defend or disavow the views of others:

• Leahy, and last week Kennedy, attempted to link Alito’s beliefs about the presidency – sketched out in his 2000 speech on administrative agencies such as SEC  -- with former Bush Justice Department official Jay Bybee, author of the 2002 memo that suggested the president might be able to immunize from prosecution officials or soldiers accused of violating the federal torture statute.
• Leahy and Sen. Herb Kohl D-Wisc. raised the topic of defeated Supreme Court nominee Robert Bork, whom Alito had praised in 1988, with Leahy noting that Bork, as solicitor general in 1973 carried out President Nixon’s order to fire special prosecutor Archibald Cox.
• Sen. Joseph Biden, D-Del., grilled Alito Thursday about former Bush Justice Department official John Yoo, under whose views, “the president could invade Syria tomorrow or invade Iran tomorrow without any approval by Congress,” said Biden.
• Kennedy suggested Alito agrees with views expressed by Northwest University law professor Steven Calabresi on the theory of the “unitary executive,” which sketches presidential power to fire administrative agency officials such as FCC commissioners.
• Both Biden and Rep. Debbie Wasserman-Schultz, D-Fla., an anti-Alito witness before the committee, compared Alito’s membership in CAP with membership in the Ku Klux Klan, which lynched blacks in the South. “I take him at his word that he didn't know what the group stood for,” Biden told Today Show host Katie Couric. “But I'm sure required to ask him, just like me asking you, `Katie, were you ever a member of the Ku Klux Klan?’”

And more than two months after the event, Leahy and Sen. Charles Schumer, D-N.Y., still seemed peeved that Bush had withdrawn his prior nominee Harriet Miers, in response to conservative criticism.

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