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REUTERS/Kevin Lamarque /Reuters/Kevin Lamarque
U.S. Supreme Court nominee Samuel Alito answers questions on the second day of his Senate Judiciary Committee confirmation hearings on Capitol Hill, Jan. 10, 2006.
REUTERS/Kevin Lamarque /Reuters/Kevin Lamarque
Kenneth Jost, Supreme Court editor for CQ Press and contributing editor of CQ Weekly, has covered legal affairs as a reporter, editor and columnist since 1970.
In a move to answer critics Tuesday, Supreme Court nominee Samuel A. Alito Jr. acknowledged a constitutional right to privacy and distanced himself from a memo he wrote two decades ago against the right to abortion.
Alito did so without upsetting conservatives as he stopped short of promising to follow the high court's key abortion rights decisions — the landmark Roe v. Wade ruling in 1973 or the 1992 decision Planned Parenthood v. Casey that gave states room to regulate abortion procedures while still upholding the basic right. Alito repeatedly said the high court should ordinarily follow precedents, but he left room for overturning prior decisions under "special justification."
On the second major issue of his confirmation hearing before the Senate Judiciary Committee, Alito also sought to reassure skeptical Democrats that he recognizes constitutional limits on presidential power, even in time of war. But he again steered clear of answering specific questions, including whether President Bush had violated the Constitution by circumventing a congressional statute in authorizing domestic eavesdropping without judicial warrants.
Alito spent more than seven hours on the witness stand Tuesday, answering questions from 14 of the committee's 18 members in a marathon that ended shortly after 7 p.m. As the hearing concluded, Judiciary Committee Chairman Arlen Specter (R-PA) complimented the 55-year-old appeals court judge on his "stamina, poise and good humor."
Other Republican senators had high praise for Alito's testimony and his judicial record. "I can't remember a nominee being more forthcoming," said Sen. Jeff Sessions (R-AL). But Democrats made clear they found many of his answers incomplete or evasive.
The hearing resumes at 9:30 a.m. on Wednesday. Specter is continuing to aim afor completing the hearing by week's end, with a committee vote next Tuesday.
Abortion Remains Focal Point
Specter opened the questioning just as he had done in the confirmation hearing for Chief Justice John G. Roberts Jr. by asking Alito whether he agreed with Supreme Court decisions protecting the right to privacy for married or unmarried couples to use contraceptives. "I do agree that the Constitution protects a right to privacy," Alito said, promising to approach any abortion case with "an open mind."
On the abortion cases, Alito said, "The courts should generally follow their past precedents."
He also stepped away from his 1985 statement as a Reagan administration lawyer in opposition to Supreme Court decisions recognizing a right to abortion. He called it "a correct statement of my view at the time," but added, "When someone becomes a judge, you have to put aside the things that you did as a lawyer in prior points in your legal career."
Later, however, Alito resisted repeated efforts by Sen. Charles Schumer (D-NY) to answer directly whether he today believes in a constitutional right to abortion. Alito said only that he would decide that issue — "if I got to it" — according to the legal doctrine of stare decisis, which calls generally for following precedent. After four tries, Schumer gave up, but not before predicting that Alito would vote to overrule Roe if confirmed.
Executive Power and Wartime
Specter and committee Democrats also questioned Alito on his views on executive power. Senators linked the issue to Bush's post-Sept. 11 decision to circumvent the congressional statute requiring warrants for domestic intelligence gathering and the administration's now disavowed claim of presidential authority to use torture overseas despite a Senate-ratified treaty banning the practice.
"No person in this country is above the law, and that includes the president and that includes the Supreme Court," Alito told the committee's ranking Democrat, Patrick J. Leahy of Vermont. "The president must follow the Constitution and the laws."
Alito, however, did not directly challenge Bush's authority on either of the issues. Instead, he cited a 1952 Supreme Court decision in saying that presidential authority "is at its lowest point" when an action conflicts with a congressional statute.
Repeatedly, Alito returned to the theme he had struck in his opening statement on Monday: that courts have what he called "a very important" but a "limited" role in the constitutional system.
"The judiciary has to protect rights, and it should be vigorous in doing that," Alito said. But, he added, "It should always be asking itself whether it is spreading over the bounds, whether it is invading the authority of the legislature, whether it is making policy judgments rather than interpreting the law."
At the same time, Alito retreated from his 1985 memo minimizing judicial power by referring to the "supremacy of the elected branches of government." He called the statement "an inapt phrase," adding: "No branch is supreme to the other."
Ethics, Alumni Group
On other issues, Alito defended his initial failure to step out of an appeal involving the Vanguard investment company because of his mutual fund investments with the company, but acknowledged, "If I had it to do over again, I would do it differently."
Sen. Edward M. Kennedy (D-MA) said Alito had broken his "pledge" when confirmed to the federal appeals court to recuse himself from any Vanguard cases. But Grassley called the ethics allegation against Alito "absurd," noting that the American Bar Association had rated him well qualified and called him "an individual of excellent integrity."
Alito also distanced himself from a group, the Concerned Alumni of Princeton, that opposed steps to increase the number of women and minority students at his undergraduate alma mater. Alito repeated the statement in his Judiciary Committee questionnaire that he had no specific recollection of his membership in the group.
After citing his own background from an Italian-American family, Alito added that he would not have been "comfortable" with restricting more diversity on campus. "That certainly wasn't part of my thinking," he said.
A Smooth Witness
Alito seemed assured and unruffled during most of the questioning. But he bristled when Sen. Russ Feingold (D-WI) asked whether any administration officials had coached him on how to answer questions on the domestic eavesdropping issue. "Nobody at any of these sessions has ever told me what to say," Alito said. "Everything that I have said is an expression of my own ideas."
At other points, Alito relaxed somewhat. He joked with Sessions when the senator cited the constitutional protection for judicial salaries as evidence that Alito would be independent of the Bush administration if confirmed. "Can the president cut your pay?" Sessions asked. "He can't," Alito said. "And neither can Congress."