Questions for Alito End, Witnesses Testify

Members of the Senate Judiciary Committee have finished questioning Supreme Court nominee Samuel Alito. Senate Republicans say three tough days of questioning did little to sidetrack Alito's likely confirmation.

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As early as next week, a Senate committee could vote on the Supreme Court nomination of Samuel Alito. The committee holds one more day of hearings today, though it's done questioning Alito himself. Next, senators focus on what Alito said, and on what he didn't. Here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG reporting:

For Judge Alito, it was all over but the shouting, and he's not in charge of shouting. That will be left to the members of the US Senate. As for Alito, he spent 18 hours on the witness stand over three days. And while his wife was at one point reduced to tears, he never once showed any emotion. His voice remained flat, even monotonous. As he answered questions, he often seemed to seek refuge from the rough-and-tumble of the Senate hearing by the use of arcane and technical legal terms.

On his last day of testimony, Alito refused once again to make commitments on most major subjects. He repeated that the Supreme Court's landmark abortion decision Roe vs. Wade is an important precedent but left the door open to reversing it. He said that having a racially and ethnically diverse student body is important, but refused to say if it's important enough to justify affirmative action policies. Answering questions about presidential power, he said that the president is not above the law, but when senators asked whether the president has the power under the Constitution to violate laws that he deems to interfere with his war-making powers, Alito refused to say.

On the question of the death penalty, Senator Russell Feingold asked whether it would be constitutional to execute an innocent person. Alito at first said the defendant has a right to a fair trial. Senator Feingold.

Senator RUSSELL FEINGOLD (Democrat, Wisconsin): My question assumes that evidence suddenly proves the person convicted was unquestionably innocent. The question is, does that person in that posture have a constitutional right not to be executed?

Judge SAMUEL A. ALITO Jr. (Supreme Court Nominee): Well, then the person would have to, as I said, file a petition, and the person would have to satisfy the requirements the Congress has set out for filing a second or successive decision.

Sen. FEINGOLD: But you can't say that the person has a constitutional right not to be executed.

Judge ALITO: Well, I have to know the specific facts of the case.

TOTENBERG: Senator Patrick Leahy moved on to another subject. He asked whether Congress may constitutionally strip the courts of the power to rule on constitutional issues. Alito demurred again. Twenty years ago, Arlen Specter asked that very question of then-Justice William Rehnquist at Rehnquist's confirmation hearing to be chief justice. `Would it be constitutional,' Specter asked, `for Congress to pass a law stripping the courts of jurisdiction to rule on questions involving the First Amendment?' Rehnquist refused at first to answer the question, saying it might well come before the court. But Specter said the issue was, in his words, bedrock, and the Pennsylvania senator suggested strongly he wouldn't vote for Rehnquist if he didn't answer. The next day, Rehnquist relented.

Justice WILLIAM REHNQUIST (Supreme Court of the United States): I think that it would be very hard to uphold a law which carved out certain provisions of the Constitution such as you're describing, the First Amendment.

Senator ARLEN SPECTER (Republican, Pennsylvania): I take it from your answer you think that the Congress would not have that authority.

Justice REHNQUIST: That's correct.

TOTENBERG: Yesterday, Senator Leahy reminded Judge Alito of that exchange.

Sen. LEAHY: Are you telling me that you're not willing to go to the extent then-Justice Rehnquist did at his hearing?

Judge ALITO: I have just not studied this issue in enough depth to be able to give an answer. I would have to study it in depth and probably hear it in the context of a case.

TOTENBERG: Senator Specter, now chairman of the Judiciary Committee, did not press the point, and the question remained unanswered. Later in the day, a panel of Alito's current and former colleagues on the 3rd Circuit Court of Appeals testified for him. Judge Edward Becker, the former chief judge of the court, called Alito a man of unfailing honor and decency. `He's not an ideologue, not a movement person,' said Judge Becker.

Judge EDWARD R. BECKER (Former Chief Judge, 3rd Circuit Court of Appeals): He is a wonderful partner in dialogue. He will think of things that his colleagues have missed. He is not doctrinaire but rather is open to differing views, and will often change his mind in light of the views of a colleague.

TOTENBERG: Former Judge Timothy Lewis, an African-American Republican appointee who is much more liberal in his approach than Alito, also spoke up for his former colleague.

Judge TIMOTHY K. LEWIS (Former Judge, 3rd Circuit Court of Appeals): Though we did disagree, it was always respectful, and that is what I came to understand as probably the most important facet of appellate judging. No one, and I mean no one, has a corner on the marketplace of ideas in terms of what is best, what is right.

TOTENBERG: But Democrats are likely to take that testimony as an acknowledgment of the fact that an Alito confirmation is likely to tilt the Supreme Court quite dramatically to the right. And yesterday it appeared that most, if not all, Democrats on the Judiciary Committee will vote against the nomination, a stark contrast with the divided vote on John Roberts' nomination to be chief justice just four months ago. Nina Totenberg, NPR News, Washington.

INSKEEP: You can find a lot more on this week's confirmation hearings, including analysis and a podcast of each day's proceedings, by going to our Web site, npr.org.

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