Alito Faces Close Questioning on Conservative Views

Democrats say they will closely question Judge Samuel Alito during his upcoming confirmation hearings for the Supreme Court. In particular, he's expected to be grilled about conservative views he expressed in a 1985 job application Joe Raedle/Getty Images hide caption

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Joe Raedle/Getty Images

Supreme Court nominee Samuel A. Alito Jr. can expect warm praise from Republicans and sharp questions from Democrats when the Senate Judiciary Committee opens hearings Monday on his confirmation to the nation's highest court.

The 55-year-old federal appeals court judge remains an odds-on favorite to succeed retiring Justice Sandra Day O'Connor, who was often a swing vote on the court. But it won't be without a fight: Liberal interest groups are mounting strong opposition to the nomination, and some Democratic senators hold open the possibility of a filibuster to try to block a vote on Alito in the Republican-controlled Senate.

President Bush chose Alito for O'Connor's seat on Oct. 31, after the failed nomination of White House Counsel Harriet Miers. Conservative groups that had strongly criticized Miers' lack of experience rushed to embrace Alito, describing him as a careful and experienced jurist with a solid resume and mainstream views.

Liberal groups were equally quick in challenging Alito. People for the American Way called Alito a right-wing activist who would dramatically change the ideological balance on the court. Two issues are likely to stand out in questioning: abortion and presidential power.

Abortion rights groups warn that Alito could provide a critical vote to uphold additional regulation of abortion or possibly even overturn the landmark Roe v. Wade decision, which protects a woman's right to an abortion during most of a pregnancy.

Critics also cite his expansive view of presidential power. In a speech, Alito endorsed the so-called unitary executive theory, which generally views restrictions on presidential power as unconstitutional. The issue gained importance after the disclosure that President Bush authorized domestic electronic surveillance without warrants following the Sept. 11, 2001, terrorist attacks.

The Nominee So Far

Alito, a former Reagan administration lawyer and federal prosecutor, stressed what he called the courts' "limited role" when he accepted Bush's nomination in a brief White House ceremony. Since then, Alito has paid courtesy calls on senators and rehearsed for the confirmation hearing in closed-door sessions organized by Justice Department officials helping to shepherd the nomination through the Senate.

Alito is expected to have a brief opening statement when the Senate Judiciary Committee begins the confirmation hearings on Monday. The committee's 10 Republicans and eight Democrats will then follow with their own opening statements. Questioning is likely to begin on Tuesday and continue through the end of the week.

O'Connor's Shadow

O'Connor has continued to hear arguments and vote on cases while waiting for action on the nomination. Judiciary Committee Chairman Arlen Specter (R-Pa.) says he wants the committee to vote on Alito in time to allow a Senate vote on confirmation by Jan. 20. Once a successor is confirmed, O'Connor's preliminary votes will no longer be counted or announced -- raising the possibility that some cases might have to be re-argued if the remaining eight justices are evenly divided.

Alito's nomination is especially important because of the pivotal role that O'Connor has played in her 25 years on a court closely divided between conservative and liberal blocs. While her record is predominantly conservative, O'Connor cast decisive votes to reaffirm abortion rights, uphold racial preferences in college admissions, overturn some death penalty cases, and broaden federal anti-discrimination laws, especially those protecting women's rights.

Alito has a more pronounced conservative record on those and other issues, according to liberal critics. They say that his views as a lawyer in the Justice Department and his opinions during 15 years on the 3rd U.S. Circuit Court of Appeals demonstrate that he takes a narrow view of defendants' rights, anti-discrimination laws, church-state restrictions and federal powers.

Judging Abortion Rights

Democrats have served notice that they will closely question Alito, in particular, about conservative views he expressed in his successful application in 1985 for the job of deputy assistant attorney general in the Justice Department's Office of Legal Counsel. Alito described himself then as a lifelong conservative and said he was "particularly proud" of his work as an assistant U.S. solicitor general in arguing against abortion rights and racial and ethnic quotas. He also criticized Warren Court decisions that protected defendants' rights, enforced church-state separation and imposed "one-person, one-vote" requirements on state legislatures.

Alito's judicial record also includes one notable opinion that abortion rights advocates are emphasizing in opposing his nomination. When the 3rd Circuit reviewed a Pennsylvania abortion law in 1991, Alito voted to uphold the act in its entirety, including a provision requiring a married woman to notify her husband before undergoing the procedure. The two other judges hearing the case -- known as Planned Parenthood v. Casey -- voted to strike down the spousal notification provision while upholding the rest of the law.

When the Supreme Court heard the Casey case, O'Connor and two other Republican-appointed justices -- Anthony M. Kennedy and David H. Souter -- joined in a crucial opinion reaffirming Roe v. Wade while slightly modifying the test for judging abortion regulations. The ruling upheld the Pennsylvania law except for the spousal-notification provision.

Alito's supporters say that his work on abortion issues while in the Reagan administration does not necessarily reflect how he will vote on such cases as a judge. They also note that in 2000, he voted to follow Supreme Court precedent in striking down a New Jersey law banning the late-term procedure that opponents call a partial-birth abortion.

Single Opinions v. Judicial Philosophy

Among his other opinions, opponents also criticize Alito for casting doubt on the constitutionality of a federal ban on machine guns, for voting to limit protections for state workers under the federal Family and Medical Leave Act, and for rejecting a Pennsylvania inmate's effort to overturn his death sentence because of inadequate legal representation. On appeal, the Supreme Court overturned the sentence in June; O'Connor cast the pivotal vote in the 5-4 decision.

Alito's supporters, including some liberal-leaning lawyers and academics, say that his opinions are meticulously crafted, narrowly written and scrupulously tied to legal precedents. Conservative interest groups echo President Bush in describing Alito as a judge who will apply the law as written and not legislate from the bench.

Alito Bio

A native of New Jersey, Alito is the son of an Italian immigrant father who worked as research director for a state agency that analyzed legislation for state lawmakers. He died in the mid-1980s. Alito's mother, who turned 91 in December, was principal of the local elementary school.

Alito graduated from Princeton University in 1972 and Yale Law School in 1975. Classmates have described him as conservative but not politically vocal or active. He was a law clerk to a 3rd Circuit judge and then an assistant U.S. attorney in Newark before serving for four years as an assistant U.S. solicitor general. He argued 12 cases before the Supreme Court during that time and won eight decisions.

After two years in the Office of Legal Counsel, Alito served for three years as U.S. attorney for New Jersey. The first President Bush appointed him to the 3rd Circuit in 1990. He easily won Senate confirmation for both posts.

Background on the Nomination

The current President Bush first interviewed Alito for O'Connor's seat last summer, but chose Judge John G. Roberts Jr. of the D.C. Circuit instead. After Chief Justice William H. Rehnquist died in September, Bush decided to name Roberts to that vacancy. Roberts won confirmation by a vote of 78-22 and presided over the opening of the Supreme Court term on Oct. 3.

Bush first picked Miers, his White House counsel, for O'Connor'seat. But she withdrew on Oct. 27. The president then settled on Alito and made the announcement on Oct. 31.

With Republicans holding 55 of the Senate's 100 seats, Alito's opponents are emphasizing his conservative views to try to persuade several moderate GOP senators to break party ranks and vote against confirmation. If that effort fails, opponents want Democrats to mount a filibuster to prevent a Senate vote. Supporters would need 60 votes to break the filibuster and force a vote.