Alito to Face Further Grilling by Senate Panel

Samuel Alito

Judge Samuel Alito listens to a question during his confirmation hearing before the Senate Judiciary Committee, Jan. 11. Reuters hide caption

itoggle caption Reuters

Supreme Court nominee Samuel Alito faces more questions Wednesday by members of the Senate Judiciary Committee. Alito spent about nine hours before the panel on Tuesday, where he was questioned doggedly about his stance on abortion and on presidential powers.

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RENEE MONTAGNE, host:

This is MORNING EDITION from NPR News. I'm Renee Montagne.

STEVE INSKEEP, host:

And I'm Steve Inskeep.

Today senators continue examining the record of Samuel Alito. To his supporters, he's an extremely qualified nominee for the US Supreme Court. To his critics, he's a very conservative replacement for Sandra Day O'Connor. In case after case, Justice O'Connor was considered a moderate and a swing vote among the nine justices. Yesterday, Alito supporters and opponents alike were working to influence the vote in the Senate. Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG reporting:

After nearly nine hours on the witness stand yesterday, Sam Alito looked exhausted. He had committed no fouls, no errors but no home runs either. He'd spoken knowledgeably about the law, the courts and his own record, but he had committed himself on almost no issue. First and foremost was abortion. Democrat Charles Schumer pushed the nominee aggressively about a letter Alito wrote in 1985 when he applied for a high-ranking job in the Reagan Justice Department. In that letter, Alito said, quote, "The Constitution does not protect the right to abortion." Senator Schumer.

(Soundbite of hearing)

Senator CHARLES SCHUMER (Democrat, New York): Do you stand by that statement? Do you disavow it? Do you embrace it?

Judge SAMUEL ALITO (Supreme Court Nominee): Senator, it was an accurate statement of my views at the time. That was in 1985. If the issue were to come before me as a judge, the first question that would have to be addressed is the question of stare decisis.

TOTENBERG: Stare decisis is the Supreme Court doctrine of respecting past court rulings, but while Alito said there is a general presumption in favor of not disturbing past decisions, it's not an inexorable rule. Senator Schumer came back at the nominee again.

(Soundbite of hearing)

Judge ALITO: As a matter of...

Sen. SCHUMER: I'm not asking about case law. I'm not asking about stare decisis. I'm asking your view about this document and whether what you stated in 1985 you believe today.

Judge ALITO: Answer to the question is that I would address that issue in accordance with the judicial process as I understand it and as I have practiced it. That's the only way I can answer that question.

TOTENBERG: After several more tries, Schumer moved in to make his point.

(Soundbite of hearing)

Sen. SCHUMER: And it's sort as if I--a friend of mine 20 years ago said to me, he said, `You know, I really can't stand my mother-in-law.' And a few weeks ago, I saw him and I said, `You still hate your mother-in-law?' He said, `Well, I'm now married to her daughter for 21 years, not one year.' I said, `No, no, no. Do you still hate your mother-in-law?' And he said, `Can't really comment.' What do you think I'd think?

TOTENBERG: Alito pointed to his record as an appeals court judge, a record in which he has not always upheld restrictions on abortion.

Judge ALITO: If I had had an agenda to uphold any abortion regulation that came along, I would not have voted as I did in my 3rd Circuit cases.

TOTENBERG: But Schumer was unappeased, noting that as a lower court judge, Alito had to follow Supreme Court decisions. For his part, the senator from New York said he had concluded that Alito would likely vote to reverse Roe vs. Wade if he ever gets the chance on the Supreme Court.

The other subject that came in for much discussion yesterday was presidential power and what limits the Constitution imposes on that power. The subject arises at a time when Washington is in an uproar over disclosures that the president for four years has authorized secret electronic surveillance on US citizens without court warrants; this despite the fact that Congress amended the Foreign Intelligence Surveillance Act after 9/11 to making getting such warrants from a special national security court easier both prospectively and after the fact in an emergency situation.

Also clearly on the minds of some committee members yesterday was the so-called torture memo, the secret memo that authorized severe coercive tactics against detainees for several years. The memo was repudiated by the Bush administration after it was leaked to the press, but last week, the president, in signing Senator John McCain's anti-torture provision into law, put into the signing statement an assertion that the president can authorize measures outlawed by Congress. At yesterday's hearing, that led to this question from Senator Patrick Leahy, Democrat of Vermont.

(Soundbite of hearing)

Senator PATRICK LEAHY (Democrat, Vermont): Let's make it an easy one. We pass a law saying it's against the law to murder somebody here in the United States. Could the president authorize somebody either from the Intelligence Agency or elsewhere to go out and murder somebody and escape prosecution or immunize the person from prosecution absent a presidential pardon?

Judge ALITO: Neither the president nor anybody else I think can authorize someone to--can override a statute that is constitutional.

TOTENBERG: But when does a statute unconstitutionally constrain the president's powers? Nominee Alito said that when Congress has legislated, the president's powers are at their weakest, but he refused to commit himself further than that.

For the most part, Republicans on the committee played defense yesterday, making little pretense to actually eliciting information from the nominee. Here, for instance, is South Carolina's Senator Lindsey Graham talking to Alito about the national security issue.

(Soundbite of hearing)

Senator LINDSEY GRAHAM (Republican, South Carolina): And the idea that our president or this administration took the law in their own hands and ignored precedent of other presidents or case law and just tried to make a power grab, I don't agree with, but this is really not about you, so you don't have to listen. I'm talking to other people right now.

TOTENBERG: Republicans also voiced outrage at the questions that have been raised about Judge Alito's failure to recuse himself three years ago from a case involving Vanguard mutual funds, a company in which he held significant amounts of stock. In 1990 when Alito was up for confirmation to the appeals court, he promised he would not participate in Vanguard cases. Yesterday, he said his participation in the case in 2002 was an oversight, and that even though the canons of judicial conduct did not require him to disqualify himself from the case, he did so when it was called to his attention because he did not want any appearance of impropriety. That promoted this statement from Republican Charles Grassley of Iowa.

(Soundbite of hearing)

Senator CHARLES GRASSLEY (Republican, Iowa): This is a blatant tactic to tar Judge Alito's honorable and distinguished judicial record, and I hope this puts to rest these outrageous claims. It's outlandish and should be rejected.

TOTENBERG: But Democrat Russell Feingold noted that he had asked similar tough questions about ethics of John Roberts at his confirmation hearing, and Feingold noted that he ended up voting for Roberts. `Asking hard questions,' said Feingold, `is our job.' `These are not trivial things,' he added, noting that Alito at his 1990 confirmation hearing had made a pledge not to participate in Vanguard cases.

In a series of answers to questions, Alito acknowledged that he may not have put Vanguard on his recusal list when he joined the appeals court. The judge says that as far as he could see it was not added to the list until 2003 when an objection was filed to his participation in a Vanguard case. Senator Feingold.

(Soundbite of hearing)

Senator RUSSELL FEINGOLD (Democrat, Wisconsin): So to be clear on the facts, there's no evidence that you requested that Vanguard appear on your standard recusal list before 2003.

Judge ALITO: That's correct.

TOTENBERG: Finally yesterday Alito could not provide any new information about his membership in an organization of Princeton alumni formed in large part to protest the admission of women and larger numbers of minorities at Princeton. In his 1985 job application, Alito bragged about his membership but now says he remembers nothing about it. Senator Leahy.

(Soundbite of hearing)

Sen. LEAHY: Why in heaven's name were you proud of being part of CAP?

Judge ALITO: Well, Senator, I have wracked my memory about this issue, and I really have no specific recollection of that organization. But since I put it down on that statement, then I certainly must have been a member at that time.

TOTENBERG: That prompted this from Republican Lindsey Graham.

(Soundbite of hearing)

Sen. GRAHAM: And I hope you'll understand that if any of us come before a court and we can't remember Abramoff, you will tend to believe us.

(Soundbite of laughter)

TOTENBERG: Nina Totenberg, NPR News, Washington.

INSKEEP: Our coverage of the Alito hearings continues at npr.org where you can hear highlights from the testimony, you can read analysis and you can download a nightly podcast program on the day's proceedings.

This is MORNING EDITION from NPR News.

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Correction Jan. 25, 2006

This story reported that Samuel Alito held significant amounts of stock in Vanguard; rather, Alito held shares of Vanguard mutual funds.

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