Even hard-left NYT sluggers like Adam Nagourney and Adam Liptak had praise for Judge Sam, although they had an almost obligatory deference to the now JFK-like aura of the new Chief Justice:
Judge Alito was not Judge Roberts, to be sure - far less personable, rarely smiling and struggling to draw even the occasional burst of laughter. But he came across as far less ideological than Democrats have suggested, undercutting their efforts to stir public opposition by portraying his writing as outside the American mainstream.
However, Alito did have one near-Roberts moment:
Like Judge Roberts, Judge Alito declined to adopt the terminology of the Judiciary Committee chairman, Senator Arlen Specter of Pennsylvania, that the status of Roe v. Wade was "super precedent" or "super duper precedent," a reference to the fact that its core holding had been reaffirmed in later cases. "It sort of reminds me of the size of laundry detergent in the supermarket," Judge Alito said, in one of the very few comments he made that gave rise to laughter.
But again, the TWO ADAMS damned Judge Alito with faint praise, comparing him to Roberts again and again at Judge Sam’s disadvantage.
Judge Alito's command of the law was impressive, but it did not have Judge Roberts's effortless, Olympian quality. In responding to one of many questions about presidential power, for instance, he slightly misstated an element of the framework set out in a 1952 concurring opinion by Justice Robert H. Jackson.
Nagourney and Liptak obviously believe Roberts is a water-walker:
Senator Jon Kyl, Republican of Arizona, asked Judge Alito, as he had asked Judge Roberts, whether it was appropriate for American courts to look to the precedents of foreign courts. The differences in their responses were illuminating.
Judge Roberts was crisp. "Looking at foreign law for support," he said, "is like looking out over a crowd and picking out your friends. You can find them. They're there. And that actually expands the discretion of the judge."
Judge Alito was more methodical. "I don't think that foreign law is helpful in interpreting the Constitution," he said, adding that it might be helpful in other contexts, including the interpretation of treaties and of issues in private lawsuits.
There was even a moment of self-deprecating wit on the part of two Republican Senators:
Judiciary Committee Chairman Specter pressed Judge Alito on whether judges "have some method of reasoning which is superior" to that of Congress.
Sen. Specter: Hard -- hard to figure out what they were getting at. We do know what they said. They said our method of reasoning was defective. But I take it from your statement, you wouldn't subscribe to overturning congressional acts because of our method of reasoning?
Judge Alito: I think that Congress's ability to reason is fully equal to that of the judiciary, and I think Congress's --
Sen. Specter: And you think that even after appearing here for a day and a half? (Laughter.)
Judge Alito: I have always thought that, and nothing has changed my mind about that.
Sen. Hatch: Starting to worry about you! (Laughter.)
Although every day makes Alito a better bet, barring a miracle counterintuitive outburst from the dipsomania victim representing Massachusetts gaining some traction, to attain the fifth Catholic seat on SCOTUS, he will probably never match his recent predecessor before the Committee, who received a terse one-sentence encomium from the normally hyper verbose Joe Biden:
"Judge Roberts, you’re the best I’ve ever seen before this Committee."
As is often the case when they question or comment, the Senators have the last word.
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