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Democratic senators Dianne Feinstein and Charles Schumer listen to Sen. Richard Durbin (right, foreground) question Judge Samuel Alito.
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.
With partisan division widening on the Senate Judiciary Committee, Supreme Court nominee Samuel A. Alito Jr. again avoided specific answers on abortion and other matters during his confirmation hearing Wednesday.
Frustrated Democrats tried to sharpen their rhetoric, accusing Alito of inconsistencies on some issues and ducking their questions on others. Satisfied Republicans praised Alito's answers and criticized the Democrats' accusatory tone and repetitive questions.
For his part, Alito appeared poised and assured during a second long day of testimony. While there was little new substance in the questions or the answers, the day was punctuated by a confrontation between Committee Chairman Arlen Specter (R-PA) and Massachusetts Democrat Edward M. Kennedy and by a brief, emotional departure by the nominee's wife.
At day's end, two Republican senators — Sam Brownback of Kansas and Tom Coburn of Oklahoma — became the first committee members to explicitly endorse Alito.
"You're going to serve as an outstanding justice of the U.S. Supreme Court," Brownback said.
The panel returns for a third day of questioning Thursday.
Nothing Settled on Abortion
Throughout the day, Democrats pressed for a more definitive statement from Alito on his view of the high court's two major abortion precedents — the 1973 Roe v. Wade ruling that legalized abortion and the 1992 decision, Planned Parenthood v. Casey, which reaffirmed Roe while giving states somewhat more room to regulate abortion procedures.
Sen. Richard J. Durbin (D-IL) opened by asking whether Alito considered Roe to be "settled" law. Alito resisted the term.
"If settled means it can't be re-examined, then that's one thing," Alito said, referring to the legal principle generally requiring that courts follow prior rulings. "If settled means that it is a precedent that is entitled to respect under stare decisis," he continued, "it is a precedent that is entitled to respect under the principles of stare decisis."
"Many people will leave this hearing with a question as to whether or not you could be the deciding vote that would eliminate the legality of abortion," Durbin said.
Eight hours later, Alito continued to be noncommittal even after Sen. Charles Schumer (D-NY) reminded him that he had been willing to describe several other Supreme Court decisions as "well settled," including the Brown v. Board of Education school desegregation ruling.
"The line that I have tried to draw is between issues that I don't think realistically will come before the court," Alito explained. He added, "Maybe I've been more forthcoming than I should have been in making these extemporaneous comments."
Accusations of Inconsistency
Democrats opened the day's proceedings by charging Alito with inconsistencies in his testimony on issues ranging from abortion to ethics to his membership in a controversial conservative Princeton alumni group.
"I'm concerned that you may be retreating from your prior record," said Vermont Sen. Patrick J. Leahy, the committee's ranking Democrat.
Tempers flared briefly when Sen. Edward M. Kennedy (D-MA) said he wants the committee to subpoena records held by the Library of Congress relating to the conservative Concerned Alumni of Princeton.
Alito testified Wednesday, as he did Tuesday, that he has no specific recollection of his membership in the group, even though he mentioned it in a 1985 job application. On Wednesday, he strongly disavowed some of the group's writings and its opposition to increasing the number of women and minority students at his undergraduate alma mater.
Kennedy complained that Alito's "explanations" about his membership "don't add up." But Committee Chairman Specter exploded when Kennedy said he would press for a vote on seeking the documents.
"I'm chairman of this committee, and I'm not going to have you run this committee," Specter said.
Panel to Review Papers
After a lunch break, Specter announced that the issue had been resolved when the donor of the papers — conservative journalist and Princeton alumnus William Rusher — had agreed to allow the committee to view the documents.
Republican senators defended Alito. Sen. Lindsey Graham (R-SC) called the criticisms about the Princeton group "guilt by association."
In an effort to help, Graham asked Alito, "Are you a closet bigot?"
"I am not any kind of bigot," Alito answered.
At this point, Martha-Ann Alito, the nominee's wife, became emotional and briefly left the hearing room.
Both Graham and Sen. Charles Grassley (R-IA) also rebutted Democratic criticism of Alito's failure to recuse himself from a 2002 case involving the Vanguard investment company, where Alito has his mutual funds.
"Your critics are grasping at any straw to tarnish your record," said Grassley, who also praised Alito as "very consistent" in his answers.
Power and the Unitary Executive Theory
In questioning about executive power, Alito added little new information, but he did attempt to clarify some earlier answers.
Alito distanced himself from the broad view of presidential power during wartime held by some conservatives. He had drawn questions on the issue because of a speech he gave in 2000 endorsing a so-called unitary executive theory. He explained Wednesday that he viewed the theory as relating solely to the president's control over subordinates.
"When I talk about the unitary executive, I'm talking about the president's control over the executive branch," Alito said. "To me the issue of the scope of the executive power is an entirely different question."
In contrast to Democrats' confrontational tone, Republicans generally offered up softball questions for Alito. Even so, several GOP senators were unsuccessful in eliciting favorable responses on issues with which they were concerned.
Citing some of Alito's prior opinions, Brownback asked whether Alito believed religious displays in and around government buildings were generally constitutional. Alito said only that the Supreme Court "has drawn some fairly fine lines" on what is permissible and what is not.
The Chairman's Turn
Specter asked Alito whether he would favor televising Supreme Court proceedings. Alito, who has served on the Third U.S. Circuit Court of Appeals since 1990, said he had favored allowing television coverage of its arguments. But, he added, "It would be presumptuous for me to talk about it right now."
Democrats appeared to be working uphill to make out a case for opposing President Bush's nomination of Alito to succeed the retiring Justice Sandra Day O'Connor. Republicans hold a 10-8 majority on the panel, and none of the GOP senators has given any hint of breaking party ranks on the vote.
By the end of the day, Republicans were complaining about the tone of the proceedings. "This turns into an adversarial process," Sen. John Cornyn (R-TX) told reporters.
But Durbin defended the questioning. "We want to ask him important questions and ask them in a respectful way," he said.
Specter had hoped to end Alito's time on the witness stand Wednesday, but Democrats asked for another round of questions. The committee resumes at 9 a.m. on Thursday.