Supreme Court nominee Samuel Alito faces his first questions from senators on the Judiciary Committee Tuesday, slightly ahead of where he was when President Bush nominated him on Oct. 31.
In contrast to previous judicial nominees, Judge Alito's approval ratings have improved ahead of his confirmation hearings, from 49 percent to 54 percent, according to an ABC News/Washington Post poll conducted last month.
Now that both sides have mastered the art of the Bork, Alito's standing reflects, in part, how effectively interest groups have neutralized each other's arguments.
"Borking" drifted into the English language - or at least into discussions on court nominations - after opponents of Reagan nominee Robert Bork moved quickly to define him to the public even before the first question was asked in his 1987 hearings. Neither President Reagan nor movement conservatives mounted a defense. After explosive Senate hearings, the nomination failed.
Conservatives vowed it would never happen again.
With the swing seat on the Supreme Court on the line, both sides have been raising funds and targeting political campaigns in anticipation of this fight for years. In the runup to this week's hearings, both sides picked up the pace on targeted ad campaigns to the same key states, op-eds, blogs, podcasts, conference calls, hundred-plus page opposition reports, and more reports countering those reports.
"Since Bork, it's been a learning experience for everyone," says Manuel Miranda, chairman of the Third Branch Conference, a coalition of conservative and libertarian groups. "Liberal groups simply haven't had traction from what they previously did."
Anti-Alito groups say that the public is just beginning to focus on what's at stake with this confirmation. "Regardless of the polls, it's the Senate Judiciary Committee hearings that are always the critical phase," says Ralph Neas, president of People For the American Way, which opposes Alito's confirmation. "That's when people start paying attention."
The anti-Alito coalition is more united going into these hearings than it was for Judge John Roberts, he adds. "We think we're in a good position going into the hearings, but the hearings almost always decide the fate of the nominee."
Last Thursday, anti-Alito activists delivered petitions with 1.1 million signatures to senators on the Judiciary Committee and launched a $600,000 TV and radio ad buy.
Both sides are targeting swing states in the ad wars over the nomination, especially Maine, Rhode Island, Arkansas, Nebraska, Louisiana, Ohio, and North Dakota, where senators may be persuaded to support a filibuster by Democrats, should Alito's answers fail to satisfy questions on how he views issues, such as abortion, privacy, civil rights, or executive power.
"The administration is pulling out all the stops on this nomination, and radical right groups will bear down on any Republican who might break away," says Sheldon Goldman, a political scientist at the University of Massachusetts at Amherst, who writes on judicial nominations."But if Democrats can show that he has opted for the most conservative positions on choice points throughout his career, they may be able to convince enough Republican senators to support a filibuster," he adds.
To break such a filibuster, Republicans need 60 votes. To exercise the what GOP leaders call the "constitutional option," to ban a filibuster for judicial nominations, they need a simple majority. In both cases, holding the GOP caucus in line is a high priority. Recent controversies over President Bush's authorization of warrantless wiretapping could help break GOP ranks on the Alito confirmation, these activists say.