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Alito, Democrats parry on Roe, rights
The aggressive questioning sometimes strained civility on the Senate panel
Wednesday, January 11, 2006

WASHINGTON -- Supreme Court nominee Samuel A. Alito Jr. yesterday refused to say whether he still believed, as he wrote in a 1985 Justice Department job application, that the U.S. Constitution does not protect a right to abortion.

 
 
 
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But he acknowledged that respect for the precedent set by the court's Roe v. Wade decision legalizing abortion was "an important part of the law in this area" and said he would approach future abortion cases with an open mind.

The federal appeals court judge from New Jersey declined, however, to endorse Sen. Arlen Specter's characterization of the Roe ruling as a "super-duper precedent," saying that term "reminds me of the size of a laundry detergent in a supermarket."

Mr. Specter, R-Pa., the Judiciary Committee chairman and an abortion-rights supporter, said he was encouraged by the nominee's comments. But an exasperated Sen. Charles Schumer, D-N.Y., told Judge Alito that he had concluded from his answers that if the nominee were confirmed, "it is very likely that you would vote to overrule Roe v. Wade."

On his first day of answering questions from the committee, Judge Alito also declined to say whether President Bush had the authority to order electronic surveillance of Americans without a court order, saying the issue might come before him. But when he was asked whether a president could "override the laws and immunize illegal conduct" by subordinates, he answered: "No person in this country is above the law, and that includes the president, and it includes the Supreme Court."

Judge Alito defended himself in detail against claims by Democratic senators that he consistently has ruled in favor of the government and against individual rights, citing cases in which he had ruled for defendants and racial minorities. Confronted with decisions in which other judges had criticized his approach, the nominee said: "These are cases where reasonable people can disagree."

Judge Alito also offered new explanations for his membership in a controversial Princeton University alumni group and his initial refusal to recuse himself from a 2002 case involving a mutual-funds firm that handles his investments.

He suggested that he might have joined the Conservative Alumni of Princeton, a group that opposed the admission of women to the formerly all-male university, because it shared his view that it was wrong of Princeton to have temporarily banned from its campus the Reserve Officers' Training Corps as an anti-war protest. "I was in ROTC when I was at Princeton, and the unit was expelled from the campus, and I thought that was very wrong," Judge Alito said.

And in response to complaints that he should not have participated in a case involving Vanguard, the firm that managed his mutual funds, Judge Alito said he "did not focus" on the Vanguard connection initially. He said the case wasn't part of his court's internal safeguard system designed to detect possible conflicts of interest because the woman suing the company wasn't represented by a lawyer.

"Once the facts are set out, everyone will realize that I not only complied with ethical rules binding on federal judges -- I went beyond the rules," Judge Alito said.

Democrats were not impressed by the explanations, noting that Judge Alito listed his membership in the Princeton alumni group on a job application 13 years after his graduation and that he had promised the Senate at his 1990 confirmation hearings for his 3rd U.S. Circuit Court of Appeals seat that he would recuse himself from cases involving Vanguard. Under questioning by Sen. Russ Feingold, D-Wis., Judge Alito said he didn't know whether he had advised 3rd Circuit officials of his pledge.

The nominee remained calm under even aggressive questioning. But the bonds of civility on the panel were strained, as Republicans accused Democratic senators of harping on "absurd" questions about Judge Alito's ethics, such as the Vanguard issue, and Democrats complained that the nominee was deflecting serious questions by speaking in generalities.

Judge Alito walked a careful line on the abortion questions. Under questioning by Mr. Specter, he acknowledged that the Constitution protected privacy rights, and he endorsed two decisions that are widely regarded as precursors to Roe v. Wade -- Griswold v. Connecticut, a 1965 case in which the high court said married couples had a right to obtain contraceptives, and Eisenstadt v. Baird, a 1972 ruling extending the same right to single people.

But Judge Alito did not offer the same endorsement of Roe v. Wade or Planned Parenthood v. Casey, a 1992 ruling in which the Supreme Court upheld the "essential holding" of Roe.

The nominee told the senators, however, that in future abortion cases the first question he would consider is the doctrine of stare decisis -- that judges should give deference to precedents such as Roe and Casey -- although he said adherence to such precedents was not "an inexorable command."

"If the analysis were to get beyond that point, then I would approach the question with an open mind, and I would listen to the arguments that were made," he said.

In other remarks, Judge Alito:

distanced himself from a 1986 memo in which he had suggested that presidents might influence judicial interpretation of federal laws by issuing written statements at their bill signings to express their understanding of a statute. Judge Alito called that memo a "rough first effort" by a working group convened by the attorney general.

insisted that he was not opposing the principle of "one person, one vote" when he had criticized the Supreme Court's reapportionment decisions in his 1985 Justice Department job application. Judge Alito, whose father was a civil servant involved in the apportionment of New Jersey's legislature, said his concern then was that, in implementing that principle, the court might prohibit minor deviations in a congressional district's population necessary to accommodate other interests, such as preserving municipal boundaries.

said a 2000 speech in which he had defended the concept of a "unitary executive" branch was not an argument that the president possessed greater powers than Congress does.

First published on January 11, 2006 at 12:00 am
Mike McGough can be reached at 202-662-7025 or mmcgough@nationalpress.com.