'Overly Deferential to Executive Power:' Partisanship and Evasiveness in Justice Samuel Alito's Confirmation Hearing

Abstract

In all President George W. Bush made three nominations to the Supreme Court: John Roberts, Harriet Miers, and Samuel Alito. I suggest that a key factor in the selection of each of these nominees was their stance on the issue of executive authority and the war on terrorism. While evidence suggests that on a number of issues Miers was a very different nominee, or at least a potentially very different nominee, from Roberts and Alito, I submit that on the issue of executive authority all three were seen by the Bush administration as reliable votes for the New Paradigm or Unitary Executive theory of government. In the following paper I conduct a content analysis of Alito's senate confirmation hearing. Did the Senate make the issue a priority? Was the issue treated in a partisan fashion? Was the nominee forthcoming or evasive in his responses on the topic? In order to answer these queries, I employ a content analysis of the questioning behavior of the members of the Senate Judiciary Committee. Recent news accounts of warrantless wiretapping and torture increased the issue's value as senators used executive-authority exchanges to signal constituents and score points with their colleagues. I find that of the substantive issues discussed, executive authority matters were addressed as much as abortion and both outpaced all other substantive issues that were raised. Furthermore, executive authority issues were treated in a partisan fashion with Democrats far more likely to raise the issue than Republicans and far more likely to be skeptical and critical in their remarks then their GOP colleagues who were almost always positive and supportive of the Bush administration and the nominee. Ultimately, my results provide support for recent studies that suggest senators engage in strategic and partisan behavior in the confirmation process.