- The Washington Times - Sunday, January 8, 2006

As Supreme Court nominee Samuel Alito appears this morning for day one of his Senate confirmation hearings, all the conditions are present for the Senate to make such hearings once again the examination of qualifications and evidentiary reasoning they simply haven’t been since the Robert Bork hearings. There can be no chasing of hidden paper trails in Judge Alito’s case: He brings the most extensive record of any Supreme Court nominee in memory, with 300 written opinions and more than 3,500 cases judged in 15 years of service on the 3rd Circuit Court of Appeals in Philadelphia. Last week, he earned a unanimous “well qualified” rating from the liberal-leaning American Bar Association, the highest mark a Supreme Court nominee can get.

Not everyone sees it this way — or, at least, not everyone is willing to agree that the facts are freely available and the issues are fully ready to be aired. There were reports late last week that Democrats intend to delay Judge Alito’s vote yet again, even though the Senate leadership and Judiciary Committee Chairman Arlen Specter made clear that 92 days between a Nov. 1 nomination and an expected full Senate vote on Jan. 20 are sufficient time for senators to examine his record.

Surely it is. The burden of proof falls on Democrats to show why not. “We look forward to supporting you,” Sen. Ted Kennedy told Judge Alito in his 1990 appellate-court hearings, calling the then-nominee “distinguished.” On Friday, Mr. Kennedy was quoted in The Washington Post accusing Judge Alito of supporting “unfettered, unlimited power of the executive.” If Democratic opinion of Judge Alito has changed for reasons other than political expediency (and we can’t read those words as anything other than a Democratic gamble that extremely dubious charges of wiretapping overreach and illegality will stick) then the argument should be aired.

The senators should ignore the scurrilous attempts by MoveOn.org to get personal with Judge Alito. For the record, here is the “evidence” behind its advertisements depicting Judge Alito as an actor with public relations help: Sen. Dianne Feinstein’s recollection of a conversation in which Judge Alito explained the difference between being a lawyer in the Reagan administration and a federal judge; a memorandum Judge Alito wrote in 1985 seeking a promotion; and Judge Alito’s onetime affiliation with a Princeton conservative group, no longer active, that opposed the school’s affirmative-action policies. If this is the best that Judge Alito’s most strident critics can do, they only burnish his qualifications.

The backdrop for all this is the continual shifting of goalposts as the judge’s critics cast about for a gripping anti-Alito narrative. First, the idea was to paint him as an abortion extremist without actually using the “A” word. “The tactic is going to be to frame it as a debate over broader rights, including privacy, civil rights and women’s rights,” but to “avoid the word itself,” Jim Manley, Senate Minority Leader Harry Reid’s spokesman, said in November. Next, there were charges of ethics violations that never quite panned out. Now, in the latest assault, some Senate Democrats want to cast Judge Alito as a standard-bearer for “monarchical tyranny,” as Mr. Kennedy warned on Friday.

Constitutionalists should welcome this battle; it is one constitutionalists can win. They can win because the facts are on their side. If reason cannot prevail over partisanship, Senate Republicans must be ready to use the nuclear option to prevent success of a filibuster. Judge Alito is entitled to hearings and an up-or-down vote. He is an exceptional candidate whose qualifications will cast petty partisan points as a cheap excuse for a real debate.

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