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RENEE MONTAGNE, host:
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The Senate Judiciary Committee is expected to wrap up its questioning of Supreme Court nominee Samuel Alito today and move on to witnesses for and against the nominee. Yesterday's hearing was marked by more sparring over ideology, some sharp questions about Alito's conduct on and off the bench and some tears from the nominee's wife. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG reporting:
In another long day of testimony, Judge Alito refused to say whether he still believes, as he stated in a 1985 job application, that abortion is not a right protected by the Constitution. In that same job application, Alito also questioned the Supreme Court's one-man-one-vote decision, but he said yesterday that he now fully supports the concept as settled law.
As to other controversies, he said he opposes citing foreign law in Supreme Court decisions, and he refused to call the Constitution a `living document,' a term that John Roberts was unafraid to embrace in his confirmation hearing. Instead, Alito more closely identified himself with those like Justice Antonin Scalia, who disdain the phrase and say they base their constitutional interpretation on the text of the Constitution and their view of the intent of the Founding Fathers.
The most contentious exchanges of the day, though, involved questions of ethics. In 1990, when Alito was confirmed for his current appeals court seat, he promised in writing that he would not participate in any cases involving Vanguard mutual funds in which he had significant holdings. It now appears he did not put Vanguard on his recusal list and in 2002, he failed to disqualify himself from a Vanguard case until one of the litigants complained. Alito then recused himself, saying that while he was not required to do so by the Code of Judicial Conduct, he wanted to meet a higher standard. At yesterday's hearing he said he did not think his 1990 pledge to the Senate bound him forever. The 1990 questionnaire asked what matters he would initially recuse himself from. That prompted Senator Edward Kennedy to ask this question.
Senator EDWARD KENNEDY (Democrat, Massachusetts): 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 and promise lasted? Is 10 years--how about three years? Is that...
Judge SAMUEL ALITO (Supreme Court Nominee): Well, I don't know exactly what the time limitation would be, but 12 years does seem to me not to be the initial period.
Sen. KENNEDY: Well...
TOTENBERG: Senator Russell Feingold followed up.
Senator RUSSELL FEINGOLD (Democrat, Wisconsin): The reason for wording a question like that, of course, is that nominees have no way of knowing when they are up for confirmation whether they will have the same investments five, 10, 25 years later. You still have to recuse yourself from a Microsoft case 15 years later if you still have the stock. Isn't that right?
Judge ALITO: If you're required to recuse yourself--if you have stock in Microsoft, even one share, you should recuse yourself.
Sen. FEINGOLD: You still have to recuse yourself even if it's 15 years later, right?
Judge ALITO: Certainly, that's true.
TOTENBERG: Also re-emerging yesterday as a source of much questioning from the Democrats was Alito's membership in Concerned Alumni of Princeton, or CAP, a group that by the mid-1970s had been condemned by such diverse individuals as Bill Frist, now the Republican Senate leader, and basketball star Bill Bradley, who would later serve as Democratic senator from New Jersey. In 1985, however, in that letter applying for a top Reagan administration job, Alito bragged that he was a member of CAP, a membership that he now says he has no recollection of. Yesterday, Senator Kennedy pressed him on the subject.
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 that the then all-male eating clubs to admit females.
Judge ALITO: Senator, I've testified to everything that I an 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: Later in the day, Republican Lindsey Graham picked up the thread.
Senator LINDSEY GRAHAM (Republican, South Carolina): Are you really a closet bigot?
Judge ALITO: I'm not any kind of a bigot. I'm not...
Sen. GRAHAM: No, sir, you're not. And you know why I believe that? Not because you just said it, but that's a good enough reason 'cause you seem to be a decent honorable man. I've got reams of quotes from people who have worked with you--men and women, black and white, your colleagues--who say that `Sam Alito, whether I agree with him or not, is a really good man.'
TOTENBERG: As Graham was speaking, Judge Alito's wife Martha began crying, eventually leaving the room. White House aides immediately pounced on the tears as evidence of how the Democrats had, quote, "overplayed their hand." But privately, Republican aides said simply that the judge's wife wasn't used to the rough-and-tumble of politics, and she later re-entered the room smiling and holding hands with her husband. Nina Totenberg, NPR News, Washington.
MONTAGNE: To hear highlights of the Alito hearings and download a nightly podcast program on the day's proceedings, go to npr.org.