Lull creates headache for White House

Alito's opponents are using weeks before Jan. hearing to try to sway opinion against Supreme Court nominee


WASHINGTON -- This is just what President Bush was hoping to avoid.

With senators home for the holidays and Bush's Supreme Court pick, Judge Samuel A. Alito Jr., biding his time until next month's hearings, opponents are using the lull to try to sway the public, and the Senate, to kill the nomination.

The tactics are creating a headache for the White House and the conservative groups supporting Alito, who are countering a drumbeat of criticism by Democrats and liberal groups with a campaign to burnish the appellate court judge's reputation and convince the public that he is a mainstream jurist.

The White House and other Alito supporters would have preferred to avoid this period of uncertainty, strategists said, after Alito made the rounds on Capitol Hill but before senators have a chance to grill him at Judiciary Committee hearings that are more than five weeks away.

The strategists think Alito's foes might be benefiting from the delay.

"This is one result of having this protracted time period. There's nothing else to do, so why not do that?" said Wendy E. Long, counsel for the conservative Judicial Confirmation Network, which supports Bush's nominees. "The effect on the process is that there's even more pressure on Democrats from the far left. They can really turn up the heat during this time, and they're doing it."

Downtime is famous in Washington for its potential to spawn scandals and fan controversy. It was during Congress' 1987 summer break that questions began to grow about Robert H. Bork, Ronald Reagan's ill-fated Supreme Court nominee.

And a delay in the vote on Clarence Thomas' confirmation during the senior Bush administration left time in 1991 for the resurgence of the sexual harassment allegations that nearly derailed it.

"This is a period of posturing and attempting to frame the debate so that when the confirmation hearings begin, the public is in the right frame of mind, or at least in the frame of mind that each side wants them to be in," said Jesse Rutledge, a spokesman for Justice at Stake, a nonpartisan group that tracks judicial elections and nominations.

In Alito's case, no bombshell has surfaced that would sink his nomination. But the release this week of documents that show Alito helped craft a legal strategy in the 1980s to undercut the landmark Roe v. Wade abortion-rights decision has given critics new ammunition.

Liberal groups say the memo could turn the tide of Alito's confirmation process, persuading wary senators to oppose him.

The document "significantly adds to his burden, which was very heavy at the beginning," said Nan Aron, president of the liberal Alliance for Justice. "In light of the gravity of these recent disclosures, it's clear that senators cannot ignore Alito's legal efforts over the years to overturn Roe."

White House aides say they aren't concerned about the revelations, arguing that Alito should be evaluated by his work as a judge - not as a lawyer - and that liberal groups have distorted the memo.

It "doesn't change the dynamic at all," said Steve Schmidt, a White House spokesman. Those denouncing the document "represent an outside-of-the-mainstream extreme" that is committed to sinking Alito.

Bush had asked the Senate to vote to confirm Alito by the end of this month, but Judiciary Committee Chairman Arlen Specter said that was unrealistic given Alito's voluminous record.

Instead, the Pennsylvania Republican cut a deal with Democrats to postpone the sessions until early next year. The hearings are scheduled to begin Jan. 9.

It is unclear whether moderate Republicans or centrist Democrats will turn against Alito as a result of the 1985 memo. In it, Alito - then a young Justice Department lawyer - called the Supreme Court's review of state abortion limits an "opportunity to advance the goals of bringing about the eventual overruling of Roe."

Democrats and liberal groups opposed to Alito said the document was clear proof that he would vote to scrap the precedent and tip the balance of the court toward leaving abortion rights up to the states or eliminating them.

Some senators in both parties who remain publicly uncommitted about Alito's nomination have said they would vote against a Supreme Court nominee who they thought would overturn Roe, although none issued any public statement on the memo.

Judiciary Committee member Dianne Feinstein, a California Democrat who is a staunch defender of Roe, has not commented on the memo. An aide said she was out of the country and not available for comment.

Republican moderates who support abortion rights, including Sens. Lincoln Chafee of Rhode Island, Susan M. Collins of Maine and Olympia J. Snowe of Maine, have also stayed silent.

Specter, who also supports abortion rights, has scheduled a meeting with Alito for today at which the memo is expected to be a topic of discussion, and he plans to brief reporters afterward.

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