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ROBERT SIEGEL, host:

From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.

MICHELE NORRIS, host:

And I'm Michele Norris.

Supreme Court nominee Samuel Alito concluded his testimony before the Senate Judiciary Committee this afternoon. The panel moved on to hearing witnesses from the American Bar Association and fellow judges from Alito's current court, all of whom testified in favor of the nomination. Analysis with our two legal experts is coming up, but first, here's NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG reporting:

After 18 hours of testimony over three days, Judge Samuel Alito rose from the witness chair, walked over to the Republican side of the dais and shook heads with senators, most of whom had been acting as GOP blockers for him. Earlier today, Republican senators stayed largely mum, understanding the more that they talked, the longer the testimony would go on. And so the field was left to the Democrats, who adopted a civil but skeptical tone, suggesting strongly that the nominee may have little or no Democratic support when the committee votes on the nomination later this month.

Committee Chairman Arlen Specter opened today's hearing with a statement about the controversy over Alito's membership in a Princeton alumni group opposed to the admission of women and increased numbers of minorities at the university. Alito bragged about his membership in the group in a letter applying for a job in the Reagan administration, but now says he remembers nothing about it. After a dispute in the committee yesterday, records of the group from the private files of conservative publisher William Rusher were obtained from the Library of Congress, and today, Chairman Specter said they contained no references to Alito.

Also today, Judge Alito conceded that after he promised the Senate at his 1990 Senate confirmation that he would not participate in cases involving Vanguard mutual funds, in which he has significant holdings, he failed to put the company on his recusal list, and did not do so until 12 years later after a complaint was filed against him. The failure, he said, was an oversight.

Judge SAMUEL ALITO (Supreme Court Nominee): I've tried to be as forthcoming in explaining what happened here as I possibly could be. And I am one of those judges that you described who take recusals very, very seriously. And I served for 15 and a half years, I sat on the merits on well over 4,000 cases.

TOTENBERG: Senator Edward Kennedy was not satisfied.

Senator EDWARD KENNEDY (Democrat, Massachusetts): The bottom line is that he just didn't think his commitment to the committee and to the United States Senate was important enough to honor.

TOTENBERG: Later in the day, representatives of the American Bar Association said the Vanguard omission was not the only one. They were mistakes, but as the chairman of the ABA screening committee, Stephen Tober, put it, `reasonable people can make reasonable mistakes.'

Other subjects covered in the questioning today were diverse and the answers from Alito typically non-committal. Does Alito think the government has a compelling interest in having racial diversity in education, an interest that justifies affirmative action policies? Alito said the Supreme Court has held that, but as to his own legal views, he wouldn't commit. Does he think that Congress has the power to strip the Supreme Court of the power to rule on constitutional issues? Again, Alito punted. Senator Patrick Leahy.

Senator PATRICK LEAHY (Democrat, Vermont): Now imagine that in the early 1950s, Congress enacted a law that purported to strip all federal courts, including the Supreme Court, of jurisdiction to hear cases and appeals involving the segregation of public schools. Would such a law have been constitutional?

Judge ALITO: Well, there's a debate among scholars about the extent of the authority of Congress to structure the appellate jurisdiction of the Supreme Court.

TOTENBERG: Leahy pointed out that Chairman Specter had insisted on an answer to a similar question when Justice William Rehnquist was at his confirmation hearings to be chief justice.

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

Judge ALITO: I have just not studied this issue in 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: Several senators tried yet again to get the nominee to say whether he thinks the president has the power, under the Constitution, to violate laws that the president deems to be interfering with his war-making powers. Alito has testified that the president is not above the law as long as the law is constitutional. Senator Russell Feingold.

Senator RUSSELL FEINGOLD (Democrat, Wisconsin): In your view, just because a law is constitutional as it's written, like a murder statute or FISA, that doesn't actually answer the question of whether the president can violate it, does it?

Judge ALITO: It would be a rare instance in which it would be justifiable for the president or any member of the executive branch not to abide by a statute passed by Congress.

Sen. FEINGOLD: I think it still leaves open the possibility of enough ambiguity and vagueness that could alter the basic balance between the Congress and the presidential power in a way that could affect our very system of government. But you...

Judge ALITO: Well, Senator, this is a momentous constitutional issue...

Sen. FEINGOLD: Today.

Judge ALITO: ...and it often comes up in a context that is not justiciable.

TOTENBERG: If a court concludes that a law is not justiciable, that's a fancy way of saying the court has concluded it's not the business of the judiciary to decide the question. Nina Totenberg, NPR News, Washington.

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