WASHINGTON -- Supreme Court nominee Samuel A. Alito Jr. declared yesterday that "no person in this country - no matter how high or powerful - is above the law," as the Senate opened confirmation hearings expected to focus heavily on the scope of presidential power and the secret domestic eavesdropping operation at the National Security Agency.
Alito's remarks before the Senate Judiciary Committee were his first substantive public comments since President Bush chose him to replace retiring Justice Sandra Day O'Connor more than two months ago. The federal appeals court judge from New Jersey talked about what he had learned from his family, his tenure as a government lawyer and from judicial colleagues.
Defending himself against Democrats' accusations that he would tip the high court sharply to the right, Alito said the chief lesson he absorbed in 15 years on the bench is that a "judge can't have any agenda, a judge can't have any preferred outcome in any particular case."
His role as an attorney underwent a "big change" in 1990, Alito said, when he was sworn in as a member of the U.S. Court of Appeals for the 3rd Circuit, based in Philadelphia. He took an oath to "do equal right to the poor and to the rich," an implied rebuttal of criticism from Senate Democrats at the hearing, who accused Alito of favoring the government and big corporations at the expense of ordinary citizens.
Alito, cast by supporters and critics alike as a conservative jurist who would shift the balance of the power on the Supreme Court, portrayed himself as an open-minded arbiter of the law.
"Good judges are always open to the possibility of changing their minds, based on the next brief that they read or the next argument that's made by an attorney who's appearing before them, or a comment that is made by a colleague during the conference on the case when the judges privately discuss the case," he said.
Yesterday's speeches by the nominee and the 18 senators on the committee offered a preview of the issues expected to dominate the questioning of Alito, which begins this morning. Democrats focused on the Bush administration's secret NSA domestic wiretapping operation and larger issues of personal freedom. Republicans, as during Senate confirmation hearings for Chief Justice John G. Roberts Jr. in September, sought to limit the scope of the forthcoming exchanges, advising Alito to avoid prejudging cases when he answers senators' questions.
Abortion, which has become a less dominant focus of the hearings since the disclosure of the NSA's warrantless domestic spying, nonetheless figured prominently in comments. Sen. Tom Coburn, an Oklahoma Republican and staunch opponent of abortion, remarked that no matter what other issues are discussed, the decision on whether to confirm Alito "is going to be about Roe," the 1973 Supreme Court decision that established a constitutional right to abortion.
Alito used his eagerly awaited remarks, at the close of the day's session, to respond subtly to many of the charges that Senate Democrats had hurled at him over the previous 3 1/2 hours.
With his wife, two children, sister and in-laws sitting behind him, the 55-year-old judge opened with an old joke about a lawyer making his first appearance before the Supreme Court. When asked how he got there, the lawyer responded, "On the Baltimore & Ohio Railroad." Alito added that he hoped that he wouldn't merely say he had arrived in Washington via Interstate 95 or Amtrak, and instead recounted his journey in more figurative terms: the son of an Italian immigrant whose mother was the first in her family to go to college; his experience at Princeton University during the late 1960s and early '70s, where he was repelled by others "behaving irresponsibly" on campus; and his pride in having the United States as his client as a government attorney.
Alito did not directly address his legal writings, dating back 20 years or more, which have drawn criticism from Democrats and questions about his views on abortion rights, executive power and civil rights. Instead, he spoke of the discrimination faced by his Italian-American father and praised his sister, Rosemary, for having succeeded in the largely male-dominated legal world.
Alito, who glanced at notes once or twice during his 11-minute statement, drew laughter when he remarked that asking Senate staffers to pore over his legal opinions "may have constituted cruel and unusual punishment."
He will be asked about some of those opinions as the hearings shift into higher gear and senators question him directly. Several said yesterday that Alito must be forthcoming with his answers, because he is replacing O'Connor, who has cast the decisive vote in dozens of high-profile cases.
Democrats on the Judiciary Committee referred repeatedly to Alito's application in 1985 for a job as deputy assistant attorney general in the Reagan administration, in which he proclaimed himself a conservative and said he believed "very strongly" that the Constitution does not protect the right to abortion.
Senators from each party, including Arlen Specter of Pennsylvania, the panel's GOP chairman, signaled their intention to query Alito on executive power. The issue has taken on much greater prominence because of the debate over the NSA eavesdropping.
"In a time when this administration seems intent on accumulating unchecked power, Judge Alito's views on executive power are especially important," said Sen. Patrick J. Leahy of Vermont, the top Democrat on the committee. "It is important to know whether he would serve with judicial independence or as a surrogate for the president nominating him."
Sen. Edward M. Kennedy, a Massachusetts Democrat, said Alito's opinions as a judge and writings as a government lawyer - some of which have been supportive of the theory of the "unitary executive," which posits that the president is endowed with sweeping powers - must be explored.
"I find Judge Alito's support for an all-powerful executive branch to be genuinely troubling," Kennedy said. "In his writings and speeches, he has supported a level of overreaching presidential power that, frankly, most Americans find disturbing or even frightening."
The topic of abortion rights, and the question of whether Alito thinks the Constitution contains an inherent right to privacy, was raised by Specter and others, including Sen. Dianne Feinstein. The California Democrat, and only woman on the Judiciary Committee, said over the weekend that she would try to block the confirmation of Alito if he hinted that he would vote to overturn Roe v. Wade.
Most Republicans on the committee heaped praise on Alito's credentials and called on Democrats to respect his prerogative as a judge not to answer specific questions about cases that might come before him on the court, including abortion rights and presidential power.
"We must apply a judicial, not a political, standard to this record," said Sen. Orrin G. Hatch, a Utah Republican.
Before the hearing, Bush met briefly with Alito at the White House and expressed hope that he would get a "dignified hearing" from the Senate.
"Sam's got the intellect necessary to bring a lot of class to that court," Bush said. "He's got a judicial temperament necessary to make sure that the court is a body that interprets the law and doesn't write the law."
To read archived coverage of the nomination of Samuel A. Alito Jr. to the Supreme Court, go to www.baltimoresun.com/court
The schedule for Supreme Court nominee Samuel A. Alito Jr.'s confirmation hearing before the Senate Judiciary Committee:
9:30 a.m.: Questioning begins with each of the committee's 18 senators getting a 30-minute round. It will continue into night, with a dinner break from 6 p.m. to 7 p.m.
9:30 a.m.: 20-minute rounds of questioning of Alito begin.
7 p.m.: Questioning resumes after a dinner break. If questioning is completed, the committee will go into closed session to review Alito's FBI background check.
9:30 a.m.: More questioning of Alito or closed session if necessary. Questioning of outside witnesses.
The confirmation hearing continues, if necessary.
Martin Luther King Jr. Day; no committee meeting.
The committee meets, possible vote.