Supreme Court nominee Samuel Alito picked his way carefully Tuesday through the issues of abortion and warrantless wiretapping, satisfying Senate Republicans at his confirmation hearings but provoking Democratic expressions of displeasure.
He asserted that the Bill of Rights still applied “in times of war and in times of national crisis,” but he declined to say whether President Bush acted properly in ordering wiretaps without warrants as part of the war on terror.
In a long day in the Senate Judiciary Committee witness chair, Alito was asked repeatedly about abortion. He assured Democratic senators he would take previous rulings into account if confronted as a justice with cases involving abortion rights.
He stressed that precedent alone does not bind the high court, however. Beyond that, “I would approach the question with an open mind and I would listen to the arguments that were made,” said Alito, who wrote two decades ago that he did not believe the Constitution includes the right to an abortion.
The 55-year-old appeals court judge distanced himself at times during the day from some of the conservative views he expressed as a younger man, saying he had been a “line attorney” in the Reagan administration at the time.
Under pressure from Sen. Russell Feingold, D-Wis., Alito admitted he did not know whether he had ever followed through on a promise he made to the Senate at the time of his confirmation to the appeals court in 1990.
At the time, he said he would avoid cases involving Vanguard, where he had money invested. But he told Feingold he did not know whether he had ever told appeals court officials about his pledge. And discarding an earlier explanation, he said, “It was not a computer glitch” that led to his participation in a 2002 case involving Vanguard.
Bush picked Alito last fall to succeed retiring Justice Sandra Day O’Connor on the court, and her record of casting the tie-breaking vote on issues such as abortion, affirmative action and the death penalty has heightened the political stakes for his nomination.
Bush’s first pick, Harriet Miers, withdrew in the face of implacable opposition from abortion opponents and other conservatives, and Democrats have repeatedly questioned why the same groups have cleared Alito’s appointment when they could not abide hers.
Alito also has been criticized by some as too likely to favor those in authority, including the president.
When asked by Sen. Patrick Leahy, D-Vt., on Tuesday whether a chief executive could “override the laws and immunize illegal conduct,” he responded: “No person in this country is above the law. And that includes the president, and it includes the Supreme Court,”
Alito sidestepped a follow-up question about the recent disclosure that Bush authorized some wiretaps without warrants as part of the war on terror. The issue “is very likely to result in litigation in the federal courts. It could be in my court. It certainly could get to the Supreme Court,” he said.
More broadly, Alito said the Bill of Rights “applies at all times. And it’s particularly important that we adhere to the Bill of Rights in times of war and in times of national crisis, because that’s when there’s the greatest temptation to depart from them.”
Sparring on abortion precedent
The former Reagan administration lawyer and federal prosecutor had scarcely settled into his seat when Sen. Arlen Specter, R-Pa., asked about a 1985 memo in which Alito wrote that the Constitution did not provide a right to an abortion.
“Well, that was a correct statement of what I thought in 1985 from my vantage point in 1985, and that was as a line attorney in the Reagan administration,” Alito replied, adding it also reflected his own belief.
Also on abortion, he defended his dissent in a 1991 case in which he voted to uphold a Pennsylvania law requiring women seeking abortions to notify their husbands. But he said at least twice during the day he had “no agenda” to erase abortion rights, citing his rulings in two other cases as evidence.
Partisan questioning, assessment
Given the strong possibility of a party-line vote in committee, it seemed at times that Alito was testifying at two parallel hearings. Democrats peppered him with questions about his rulings in cases involving civil rights, presidential power, criminal cases and more. Republicans often invited him to defend his actions and rulings of the past.
Leahy first mentioned Alito’s membership in the Concerned Alumni of Princeton, a group that opposed admission of increased numbers of women and minorities.
“I really have no specific recollection of that organization,” Alito said, although he did not dispute that he belonged to it.
Moments later, Sen. Orrin Hatch, R-Utah, returned to the issue.
“Let me just ask you directly, on the record, are you against women and minorities attending colleges?”
“Absolutely not, Senator. No,” he replied.
Said Hatch, “You know, I felt that that would be your answer. I really did.”
Hatch also asked about Vanguard in what Republican officials said was an attempt to pre-empt Democrats. But it was Feingold several hours later who pressed Alito into conceding he did not know whether he had ever told officials at the appeals court to place Vanguard and other entities on a list of cases he should avoid.
Outside the committee rooms, senators of both parties offered differing assessments of the proceedings.
“I think Judge Alito went farther than Chief Justice Roberts did” in discussing abortion, said Specter, signaling satisfaction with the responses to his questions.
But Sen. Charles Schumer, D-N.Y. dissented. “We’re going to keep asking questions until we find out specific answers to how he feels about major issues confronting Americans today,” he said.