So complained Patrick Leahy, the Democrat from Vermont, after Judge Samuel A. Alito Jr., the Supreme Court nominee, completed three days of testimony that seemed, at times, to be a torturous class in legal semantics.
Frustrated Democrats on the Judiciary Committee asked Judge Alito about precedent, trying to figure out whether he would vote to overturn Roe v. Wade. They asked about "the unitary executive," trying to figure out how much power he would turn over to a president in wartime. They asked whether he was a strict constructionist.
Judge Alito's answers rarely satisfied skeptics. But if the effort was strained, there was reason. The Supreme Court seems to be at a turning point - with contentious issues like abortion, Congressional power, affirmative action and presidential power in the balance.
While it's clear that Judge Alito is a conservative, it's not easy to figure out what kind. There are several brands of conservative legal theory. Is Judge Alito more like the late Chief Justice William H. Rehnquist, who was a pragmatist? Or more like Justice Antonin Scalia, who believes that the original meaning of the Constitution matters more than 50-year-old precedents?
Or would he walk in lockstep with the new chief justice, John G. Roberts Jr.? To many legal scholars, the different philosophies that emerged in the two hearings suggest that Judge Alito might be more conservative than Chief Justice Roberts, and might join Justices Scalia and Thomas in supporting conservative activism.
On a range of specific issues - from Congressional and executive power to the future of abortion - Judge Alito appeared to be less flexible and less pragmatic than Chief Justice Roberts. What follows is a guide to the possible differences in the most important issues they are likely to confront on the court.
Judicial Philosophy
Judge Alito: "The principles don't change. The Constitution itself doesn't change. But the factual situations change."
Judge Roberts: "I do not have an overarching judicial philosophy that I bring to every case. I tend to look at the cases from the bottom up rather than the top down."
Both nominees were asked whether they considered themselves "originalists" who believe, like Justices Scalia and Thomas, that the Constitution must be interpreted in light of the original intent of its framers. Judge Alito seemed to endorse originalism.
Chief Justice Roberts, by contrast, appeared to disavow originalism, emphasizing that he has no "overarching judicial philosophy." His explanation that he begins with the facts of a case from the "bottom up" rather than imposing a theory like originalism from the "top down" signals that he might allow for more constitutional evolution than Judge Alito.
Roe v. Wade
Alito: "If 'settled' means that it can't be re-examined, then that's one thing. If 'settled' means that it is a precedent that is entitled to respect as stare decisis and all of the factors that I've mentioned come into play then it is a precedent that is protected, entitled to respect."
Roberts: "It's settled as a precedent of the court, entitled to respect under principles of stare decisis."
The nominees were asked if they agreed with Chief Justice Roberts's earlier comments that Roe was the "settled law of the land." Both engaged in Clintonian hairsplitting about what, precisely, "settled" means.
Chief Justice Roberts seemed to reaffirm that Roe was a "settled precedent," but left himself wiggle room by saying that the decision was "entitled to respect" under the doctrine of stare decisis, which means "let the decision stand."
Judge Alito pointedly refused to say that Roe was "settled," leading some commentators to conclude that he might be more likely to overturn Roe v. Wade.
"I'd bet a large sum of money that Alito won't vote to retain Roe v. Wade, and I wouldn't bet a nickel on Roberts," said William Stuntz, a law professor at Harvard.
But some of Judge Alito's supporters disagree. "I don't think there's a great deal of daylight between Alito and Roberts on privacy," said Charles Fried, of Harvard Law School, who testified for both nominees and has predicted that neither would overturn Roe. "Roberts said Roe is 'settled law' and everyone took that as a commitment not to vote against it. Alito is very correct, and in his correctness he just thinks it's inappropriate to give that kind of commitment."
Congressional Power
Alito: "I think that Congress's ability to reason is fully equal to that of the judiciary."
Roberts: "I don't think the court should be taskmaster of Congress. And I appreciate very much the differences in institutional competence between the judiciary and the Congress when it comes to basic questions of fact-finding."
In both confirmation hearings, Democratic and Republican senators expressed concern about the Rehnquist Court's willingness to strike down acts of Congress. At issue is the scope of Congress's power to regulate interstate commerce.
In a series of 5-to-4 decisions, conservative justices have overturned federal laws that they said did not substantially affect interstate commerce, like laws regulating guns in schools or violence against women.
Chief Justice Roberts's suggestion that Congress has more "institutional competence" than the Supreme Court to engage in "fact-finding" indicates that he would be more deferential to Congress than Judge Alito would. Chief Justice Roberts went out of his way to emphasize that the Supreme Court, unlike Congress, is ill equipped to make policy judgments or predictions about the economic effects of laws.
Chief Justice Roberts "might even be more deferential than Chief Justice Rehnquist and Sandra Day O'Connor, who often joined Justices Scalia and Thomas and Kennedy in imposing strict limits on federal power," said John Yoo, a law professor at the University of California at Berkeley.
Executive Power
Alito: "The whole issue of the extent of the president's authority to authorize the use of military force without Congressional approval has been the subject of a lot of debate."
Roberts: "If the executive has acted unconstitutionally, [courts] have the obligation to block the executive action."
The most controversial question in the Alito hearings was the scope of a theory that some scholars call the "unitary executive."
In its weak form, this theory says the president has the power to fire executive branch officials, like the independent counsel. In its more aggressive form, advanced by scholars like Professor Yoo, the unitary executive theory says the president has broad authority to act in wartime without checks by Congress or the courts.
Not all conservatives agree: Justice Scalia, for example, has said that the president needs explicit authorization from Congress to suspend habeas corpus, while Justice Thomas says the president has broad authority to act without constraint.
"I don't see a lot of daylight between Alito and Roberts on executive power issues," said Professor Yoo. "I think they would be closer to Chief Justice Rehnquist, who said we are at war, Congress has authorized the war and that authorization gives the president all the traditional powers."
Other scholars detect more of a difference, noting that Judge Alito at one point mischaracterized a famous opinion by Justice Robert Jackson imposing limits on presidential power. "I think Roberts was more comfortable with the idea of deciding a presidential power question, while Alito was a little less sure of his ability to be able to rein in a president," said John Barrett of St. John's Law School. "Each judge is clearly a believer in executive power, but Roberts feels a little more comfortable being assigned to limit it than Alito does right now."