Judging the Judge

Resumes dont get much better than this: Princeton; Yale Law School; high-powered Washington jobs; 15 years of distinguished service on the federal bench. But for Supreme Court nominee Judge Samuel Alito, a lifetime's work has boiled down to one public performance this week on Capitol Hill. For months now, Senators from both parties have said Alito's fate hangs not on his record, but on how he does in the Judiciary Committee hearings that opened Monday at noon in the Hart Senate office building. Democrats have mined Alito's writings and come up with what they say is strong evidence of someone outside the mainstream—a supporter of unchecked presidential powers, opponent of civil rights and threat to a woman's right to choose. Republicans insist Alito is a hardworking immigrant's son who is conservative but fair—and a nice guy to boot.

With compelling, conflicting arguments on both sides, it is the man himself, and the impression he makes, that will determine which image sticks, and which way the votes will be cast for his confirmation. Republican aides and handlers from the White House and the Hill were visibly nervous today about how Alito would perform once he faced the Senators. Some worried that Alito would suffer under the comparison to Chief Justice Roberts stellar performance last August. Alito's nerdy earnestness and cold sincerity could break either way, making him look good-hearted and inspiring or distant and uncaring. In the end the intangible elements of his testimony were beyond their control.

Senators on both sides tried to prepare the ground for Alito as he sat and listened to their opening statements in silence. Ted Kennedy hit him hardest, implying that his inclination to rule in favor of the executive branch might make him "a cheerleader for an imperial presidency" and saying that average Americans have had "a hard time getting a fair shake" in his courtroom. Republicans for the most part stuck to a recitation of Alito's unassailable credentials and the upbeat testimonials of colleagues and clerks—Republicans and Democrats alike. Only Republican Senator Tom Coburn of Oklahoma went way off message, declaring that Alito's confirmation was about whether the United States should have ever legalized abortion—perhaps the last battle Republicans want this nomination to be about, given overwhelming popular support for legal abortion in the country.

When it finally came time for Alito to give his opening statement, he added to the tension by taking a long moment to collect himself, sort his notes and gulp a long slow drink of water. When he started to speak his voice was tense but controlled. "I am deeply honored to appear before you," Alito said, "I am deeply honored to have been nominated for a position on the Supreme Court. And I am humbled to have been nominated for the seat that is now held by Justice O'Connor." Alito was appearing stiff and cold as predicted. A lame joke about how he got to where he is didn't help.

But as he went on, relating his family's history and a few key moments in his life, he began to hit his stride, loosening up and striking a few genuine chords. "I got here in part because of the community in which I grew up," he said, "It was a warm but definitely an unpretentious, down-to-earth community. Most of the adults in the neighborhood were not college graduates. I attended the public schools. In my spare time I played baseball and other sports with my friends." The gauzy reminiscence was well calculated to undercut Democratic insistence that Alito doesn't care about the common man.

Democratic aides later scoffed at what they called the "Aw shucks" quality of the presentation. But Republicans were pleased. GOP operative Ed Gillespie, Alito's chief handler at the White House, said, "He was great. It is a compelling story." Even Senator Charles Schumer conceded, "It's a very nice story, it is." In the balance between out-of-touch egghead and accessible everyman, Alito had come off as human. But Alito faces at least two more days of hearings. And Democrats sense vulnerability. One aide thought he showed defensiveness in the face of Kennedy's oblique accusation of discrimination, a weakness the Democratic liberal is sure to try to exploit. Over the next few days, Alito will face a barrage of attacks against his past positions on presidential powers, privacy and civil rights, testing definitively just how sympathetic he is to mainstream America