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From NPR News, this is ALL THINGS CONSIDERED. I'm Robert Siegel.
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And I'm Michele Norris.
Tempers flared today at the confirmation hearings for Supreme Court nominee Samuel Alito, but it wasn't the nominee who raised his voice; it was some of the senators on the committee. We'll talk with a Republican and a Democrat from the Judiciary Committee in a few minutes. First, a report on the day's events from NPR's Nina Totenberg.
NINA TOTENBERG reporting:
The day began with Democrats pressing Alito to say whether he still believes, as he wrote in 1985, that the Constitution does not protect a right to abortion and Republican senators pressing the nominee to say that the Supreme Court often reverses past decisions for good reason. In neither case did Alito take the bait.
Democrat Patrick Leahy then pressed Alito about his views on executive power. The judge in speeches over the years has been a strong advocate of something called the unitary executive. The phrase has become something of a code word for expanding the powers of the presidency, and President Bush has aggressively pushed the idea. Two years ago, though, in a case assessing whether American citizens can be detained as enemy combatants without charge, Justice Sandra Day O'Connor wrote for the Supreme Court that the president's war-making power is not a blank check. Justice Clarence Thomas was the court's lone dissenter, declaring that the courts have no role to play in protecting individuals from executive overreaching in this regard. Senator Leahy.
Senator PATRICK LEAHY (Democrat, Vermont): Which decision do you personally agree with, hers or the dissent by Justice Thomas?
Judge SAMUEL A. ALITO Jr. (Supreme Court Nominee): I think that the war powers are divided between the executive branch and the Congress.
Sen. LEAHY: But you're not going to say which of the two decisions you agree with?
Judge ALITO: Well, I'm trying to explain--I certainly don't think that the president has a blank check in time of war. He does have the responsibility as the commander in chief, which is an awesome responsibility.
TOTENBERG: The tone of the hearing changed, though, when Senator Edward Kennedy began his second round of questioning, focusing first on Judge Alito's 2002 failure to disqualify himself from a case involving Vanguard mutual funds in which he held significant stock interests. In 1990, at the time of his appeals court confirmation, Alito pledged in writing to recuse himself from Vanguard cases. And in 2003, after a complaint from a litigant in a Vanguard case, Alito did disqualify himself, declaring at the time that he did not have to do so under the canons of judicial conduct, but adding that he wished to meet a higher standard. Today Alito said he had mot meant his 1990 pledge to cover Vanguard cases for as long as he held stock; rather, that he was responding to a question about what matters he would initially disqualify himself from. That drew some sharp questions from Senator Kennedy.
Senator EDWARD KENNEDY (Democrat, Massachusetts): And I'd just like to know how long that was going to be. Was that going to be two years? Was it going to be three years? Was it going to be five years? When did you feel that you were going to be released?
Judge ALITO: Senator, I did not rely on that time limitation in relation to what I did in the Monga case, and I hope I've made that clear. Looking at the question now, where it says `initial period of service,' I would say that 12 years later is not the initial period of service, but that was not the...
Sen. KENNEDY: When did it stop, then? How long, then, when you made the promise under oath to the committee that you were going to recuse yourself and you understand that now to be in your own interpretation just to be the initial time--how long did you think that that pledge of promise lasted? Is 10 years--how about three years? Is that...
Judge ALITO: Well, I don't know exactly what the time limitation would be, but 12 years...
Sen. KENNEDY: Well...
Judge ALITO: ...does seem to me not to be the initial period.
TOTENBERG: Kennedy then moved on to the subject of the Concerned Alumni of Princeton, known as CAP, the infamous organization formed by some Princeton alumni in the early 1970s to protest the admission of women to Princeton and the increased admission of minorities. In his 1985 job application for a job in the Reagan administration, Alito bragged about being a member of the group, but he now says he has no recollection of his membership. Senator Kennedy noted that in the year of Alito's job application, the organization had already made quite a mark and had been repudiated by Princeton alumni as diverse as the current Senate Republican leader, Bill Frist, and then Democratic Senator Bill Bradley.
Sen. KENNEDY: Did you read a letter from CAP mailed in 1984--this is the year before you put CAP on your application--to every living alumni--so I assume you received it--which declared, `Princeton is no longer the university you knew it to be'? As evidence, among other reasons, it cited the fact that admission rates for African-Americans and Hispanics were on the rise, while those of alumni children were failing, and Princeton's president at a time had urged the then all-male eating clubs to admit a female.
Judge ALITO: Senator, I've testified to everything that I can recall relating to this, and I do not recall knowing any of these things about the organization. And many of the things that you've mentioned are things that I have always stood against.
TOTENBERG: Alito said that, as best he can guess, he joined the group because of his upset over the removal of ROTC from the campus. Senator Kennedy countered that by the mid-1970s, though, ROTC had returned to campus and, according to CAP's own magazine, had been restored to popularity. So, Kennedy said, he wasn't satisfied with Alito's answer.
Sen. KENNEDY: In fact, I don't think that they add up.
TOTENBERG: As it happens, extensive records about CAP exist in the files of conservative publisher William Rusher which are lodged in the Library of Congress, but Rusher has refused to provide them and, by this morning, Kennedy had failed in enlisting Chairman Specter to get them. So the Massachusetts Democrat upped the ante.
Sen. KENNEDY: My request is that we go into the executive session for the sole purpose of voting on a subpoena for these records that are held over at the Library of Congress, that purpose and that purpose only.
Senator ARLEN SPECTER (Republican, Pennsylvania; Judiciary Committee Chair): Well, the...
Sen. KENNEDY: And if I'm going to be denied that, I'd want to give notice to the chair that you're going to hear--have it again and again and again, and we're going to have votes of this committee again and again and again until we have a resolution. I think it's a bas...
Sen. SPECTER: Well, Senator Kennedy, I'm not concerned about your threats to have votes again, again and again, and I'm the chairman of this committee, and I have heard your request, and I will consider it.
TOTENBERG: By afternoon, tempers had cooled and Specter had won access to the Rusher papers for the committee. The dispute prompted this advice to Alito from Republican Charles Grassley.
Senator CHARLES GRASSLEY (Republican, Iowa): It's kind of like we're in the fourth quarter of a football game and you're the quarterback and your team is way ahead here in the fourth quarter, and opponents are very desperate, and you're going to keep getting these last-minute Hail Marys thrown at you.
TOTENBERG: The hearings continue tomorrow. Nina Totenberg, NPR News, Washington.
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