Let's remember what happened with John Roberts, whose performance at the confirmation hearings is now held up as a model of near-perfection. Here's the NYT editorial, "Too Much of a Mystery," that was written after the hearings:
John Roberts failed to live up to the worst fears of his critics in his confirmation hearings last week. But in many important areas where senators wanted to be reassured that he would be a careful guardian of Americans' rights, he refused to give any solid indication of his legal approach. That makes it difficult to decide whether he should be confirmed. Weighing the pluses and minuses and the many, many unanswered questions, and considering some of the alternatives, a responsible senator might still conclude that he warrants approval. But the unknowns about Mr. Roberts's views remain troubling, especially since he is being nominated not merely to the Supreme Court, but to be chief justice. That position is too important to entrust to an enigma, which is what Mr. Roberts remains....I expect the editorial at the close of the Alito hearings to follow that pattern. Of course, there's this line about Roberts:
If he is confirmed, we think there is a chance Mr. Roberts could be a superb chief justice. But it is a risk. We might be reluctant to roll the dice even for a nomination for associate justice, but for a nomination for a chief justice - particularly one who could serve 30 or more years - the stakes are simply too high. Senators should vote against Mr. Roberts not because they know he does not have the qualities to be an excellent chief justice, but because he has not met the very heavy burden of proving that he does.
We might be reluctant to roll the dice even for a nomination for associate justice, but for a nomination for a chief justice - particularly one who could serve 30 or more years - the stakes are simply too high.But that's easily tweaked:
We might be reluctant to roll the dice even for other nominations to the Supreme Court, but for a nomination to replace Sandra Day O'Connor, whose centrist vote has held the Court in balance for many years, the stakes are simply too high.But the Times is right to raise concerns about Alito:
Judge Alito's confirmation hearings begin tomorrow. He may be able to use them to reassure the Senate that he will be respectful of rights that Americans cherish, but he has a lengthy and often troubling record he will have to explain away. As a government lawyer, he worked to overturn Roe v. Wade. He has disturbing beliefs on presidential power - a critical issue for the country right now. He has worked to sharply curtail Congress's power to pass laws and protect Americans. He may not even believe in "one person one vote."Alito must know that he needs to endorse the precedential importance of the right of privacy (the way Roberts did), or all hell will break loose. I expect Senator Specter to assist him in laying in that cornerstone of confirmation as early as possible in the hearings. I expect the abortion issue to be packaged away neatly enough, though various Democrats will continue, ineffectually, to harp on it.
The White House has tried to create an air of inevitability around Judge Alito's confirmation. But the public is skeptical. In a new Harris poll, just 34 percent of those surveyed said they thought he should be confirmed, while 31 percent said he should not, and 34 percent were unsure. Nearly 70 percent said they would oppose Judge Alito's nomination if they thought he would vote to make abortion illegal - which it appears he might well do.
But there are plenty of other issues to raise, including many timely and important matters about the scope of executive power. We have every reason to think that Presidents pick nominees who put a high value on executive power, and this President is pushing the limits of executive power and is therefore especially motivated to find judges who will support him. The Senators really do need to defend the legislative branch with some tough questioning here. Listening to the debate this week will give us all a good opportunity to think about what the balance of power between the President and Congress should be.
UPDATE: Stephen Bainbridge goes through the editorial and refutes it point by point.