Supreme Court nominee Samuel Alito told senators Monday that good judges don’t have an agenda, don’t look for partisan outcomes and “always do what the law requires” as the Senate opened hearings on President Bush’s choice for the high court.
“A judge can’t have any agenda. A judge can’t have a preferred outcome in any particular case,” Alito told the Judiciary Committee in a brief statement in which he made a distinction between judges and attorneys working for clients.
Alito, a conservative jurist on the federal appeals court, would replace retiring Justice Sandra Day O’Connor, who has been a decisive swing vote on abortion, affirmative action and death penalty cases.
After listening to opening statements from the 18 members of the committee, Alito got his chance to speak and described his Italian immigrant father’s background, his mother’s work experience and his own academic career. He told the panel about his legal philosophy.
“The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand,” Alito said. “But a judge can’t think that way. A judge can’t have any agenda, a judge can’t have any preferred outcome in any particular case and a judge certainly doesn’t have a client.”
In his 11-minute statement, the judge gave no indication about how he might respond to the tough questions Democrats have promised on the divisive issues of executive power, abortion and the privacy rights.
Alito said his solemn obligation is to the rule of law and that a judge must do what the law requires.
“No person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law,” he said.
Grilling starts in earnest Tuesday President Bush’s choice to become the nation’s 110th Supreme Court justice faces the first questioning on Tuesday, and Democrats promised Alito tough questions on executive power, privacy rights and abortion.
Several Democrats expressed misgivings about Alito’s 15 years of decisions and opinions as an appellate judge and his writings during his tenure as a lawyer in the Reagan Justice Department.
Sen. Joseph Biden, D-Del., focused on the larger debate over interpretation of the Constitution, saying that there is a "genuine struggle" over key issues in the document, thus the questioning was right to be extensive and probing.
According to Biden, the hearings come in the middle of "the most significant national debate in modern Constitutional history," he said, arguing that Americans are "entitled to know" what Alito thinks.
The hearings opened amid a growing debate over executive authority and Bush’s secret decision to order the National Security Agency to wiretap Americans in the terror war.
Kennedy: Troubling questions
“Your record raises troubling questions about whether you appreciate the checks and balances in our Constitution — the careful efforts of our Founding Fathers to protect us from a government or a president determined to seize too much power over our lives,” said Sen. Dick Durbin, D-Ill.
“In an era when the White House is abusing power, is excusing and authorizing torture and is spying on American citizens, I find Judge Alito’s support for an all-powerful executive branch to be genuinely troubling,” said Sen. Edward Kennedy, D-Mass.
Said Sen. Russell Feingold, D-Wis.: “We need judges who see themselves as custodians of the rights and freedoms that the Constitution guarantees, even when the president of the United States is telling the country that he should be able to decide unilaterally how far those freedoms go.”
'A lot of class'
Republican Sen. Mike DeWine of Ohio offered a counterpoint. “Your modest approach to judging seems to bode well for our democracy,” he said.
The hearings come just months after the Senate confirmed John Roberts as chief justice, and Republicans frequently cited the standard set by Roberts in his hearings for the high court.
Republicans also defended Alito, the president’s pick to replace retiring Justice Sandra Day O’Connor, describing him as a fair-minded and brilliant jurist who would be a welcome addition to the court.
“Sam’s got the intellect necessary to bring a lot of class to that court,” said Bush in a good-luck sendoff for Alito at the White House.
Alito, said Sen. Charles Grassley of Iowa, “has a reputation for being an exceptional and honest judge devoted to the rule of law, and a man of integrity.”
Alito, 55, introduced members of his family — including his wife Martha, sister Rosemary and his son and daughter — and then sat and listened to the opening statements from the first of the committee’s 18 members. Only after their remarks would the nominee get a chance to make his opening statement.
Hatch: Use judicial, not political standard
Politics loomed large in the confirmation process, but Republican Sen. Orrin Hatch of Utah urged his colleagues to put them aside in assessing Alito’s qualifications.
“We must apply a judicial, not a political, standard to this record,” Hatch said.
Alito would replace O’Connor, a crucial swing vote on abortion, affirmative action and the death penalty since she joined the Supreme Court in 1981.
“Her legacy is one of fairness that I want to see preserved,” said Sen. Patrick Leahy of Vermont, the committee’s top Democrat.
Alito, a judge on the Philadelphia-based 3rd U.S. Circuit Court of Appeals, was chosen by Bush on Oct. 31. A graduate of Princeton and Yale Law School, Alito served as a prosecutor in New Jersey and a lawyer in the Reagan administration.
“My hope of course is that the Senate bring dignity to the process and give this man a fair hearing and an up-or-down vote on the Senate floor,” Bush said before Monday’s hearing. He added: “Sam, good luck to you.”
Ten-minute opening statements by the Judiciary Committee’s 18 members consumed much of the opening session, with direct questioning of Alito to get fully under way Tuesday. The hearings were expected to last at least two days.
Vote or filibuster?
Specter said he would wrap up the hearings this week. He has called for a committee vote by Jan. 17.
Republican leaders hope for confirmation by the full Senate on Jan. 20, but Leahy would not promise the schedule would hold.
Alito was Bush’s second choice to replace O’Connor. White House counsel Harriet Miers withdrew from consideration after conservatives questioned her judicial philosophy and qualifications for the Supreme Court.
Democratic Sen. Charles Schumer of New York cited the conservative response to the two nominations.
“The same critics who called the president on the carpet for naming Harriet Miers have rolled out the red carpet for you,” Schumer said. “We would be remiss if we did not explore why.”
Republicans say there is no reason to delay or filibuster Alito. Senators who have met privately with Alito say he told them that his 1985 written comments maintaining there was no constitutional right to abortion were only part of a job application for the Reagan administration, which opposed abortion.
Abortion issue in the wings
He wrote in a separate legal memo while at the Justice Department that the department should try to chip away at abortion rights rather than mount an all-out assault.
“We will ask you: ‘Do you still “personally believe very strongly that the Constitution does not protect a right to an abortion?”’ Schumer said.
Specter, said, “This hearing will give Judge Alito the public forum to address the issue, as he has with senators in private meetings, that his personal views and prior advocacy will not determine his judicial decision.”
No matter what Alito says, some Democrats will oppose him, Sen. John Cornyn, R-Texas, predicted.
“I am reluctantly inclined to the view that you and any other nominee of this president for the Supreme Court start with no more than 13 votes in this committee, and only 78 votes in the full Senate with a solid, immovable and unpersuadable block of at least 22 votes against you, no matter what you say or do,” the statement said.