Court nominee defends record

THE BALTIMORE SUN

WASHINGTON -- Supreme Court nominee Samuel A. Alito Jr. pledged to keep an "open mind" on abortion-rights cases and denied that he has any judicial agenda to restrict abortions, as he navigated carefully yesterday through a minefield of questions from senators weighing his confirmation.

During a marathon session on Capitol Hill, Alito declined repeatedly to detail his views on such issues as whether the Constitution protects abortion rights or President Bush had the power to authorize domestic spying by the National Security Agency without warrants.

The questioning by the Senate Judiciary Committee, a critical stage in the president's push to get Alito confirmed, continues today.

Alito, in more than eight hours of testimony, defended his 15-year record as a federal appeals court judge, described his narrow approach to deciding cases and laid out his philosophy of the important but limited role he said courts should play in society.

"This is a way in which I can make a contribution to the country and society," Alito said when asked why he sought a seat on the Supreme Court.

Under pointed questioning from Democrats, Alito, 55, distanced himself from a conservative group he joined as an undergraduate at Princeton University that resisted the admission of women and minorities to the school.

He revealed little about how he would decide hot-button issues. Presidents should abide by the law and the Constitution, especially during times of war, Alito said.

"No person in this country is above the law, and that includes the president, and that includes the Supreme Court," he said.

But Alito deflected questions about the legality of the NSA domestic spying program, saying that cases in which a president acts contrary to what Congress intends "have to be decided when they come up, based on the specifics of the situation."

Questions about the NSA program "are obviously very difficult and important and complicated questions," Alito said, adding that they "are quite likely to arise in litigation" either in the Philadelphia-based U.S. Court of Appeals for the 3rd Circuit, on which Alito now sits, or at the Supreme Court.

Senators were split along partisan lines in their assessments of Alito's performance, with most Republicans praising his testimony as enlightening and Democrats complaining that Alito had shed little light on his views.

Sen. Arlen Specter, the Pennsylvania Republican who chairs the Judiciary Committee, said Alito had taken a "good approach" to the session, volunteering more perspective on legal issues than did Chief Justice John G. Roberts Jr. during confirmation hearings last fall.

But Alito's cautious testimony, delivered in steady tones, was received with frustration by Democrats who accused him of taking refuge in broad assertions designed to conceal his views on important issues.

Alito discussed "general and vague principles of the law, but did not tell us his specific views on how he'd apply those general principles to specific cases," said Sen. Charles E. Schumer, a New York Democrat, during a break in the proceedings. He said senators had learned nothing more from Alito's answers than they knew after his opening statement Monday.

Some Republicans, too, said they wished Alito had been more forthcoming.

"I'm uncomfortable, because I would like to see somebody who would overturn Roe," said Sen. Sam Brownback of Kansas, who opposes abortion rights. "But we've heard from him, and he's not going to state that."

Alito refused to answer questions about whether Bush had the power to authorize domestic wiretapping by the NSA without authorization from a court or Congress, saying he would have to hear in-depth arguments from each side.

But under pointed questioning from Sen. Russell D. Feingold, a Wisconsin Democrat, Alito conceded that the NSA program and other issues of executive power that have arisen since the Sept. 11 attacks represent a conflict between two of the most important principles in constitutional law: defending the country and protecting Americans' fundamental rights.

"Things that are taking place in wartime are probably more difficult for the judiciary to evaluate than other factual questions," Alito said.

Earlier, he rejected the notion that civil liberties should take a back seat to security during wartime, saying it was "particularly important" to abide by 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."

Alito lapsed at times into technical justifications of his decisions, seeking to defend his record as a judge against accusations from Democrats that he has been overly deferential to presidential and law enforcement power.

"We need to know whether the average citizen can get a fair shake from you," said Sen. Edward M. Kennedy, a Massachusetts Democrat.

Alito fought back during an exchange with Sen. Jon Kyl, an Arizona Republican, who asked whether he had ever ruled in favor of a black plaintiff in a discrimination case, or sided against the government or a corporation in a lawsuit. Alito rattled off a handful of examples.

"There have been a number of criminal cases in which I have sided with the person claiming a violation of rights," Alito said.

Pressed for his views on abortion rights, Alito said he believes that the Constitution protects a right to privacy -- a key underpinning of the landmark 1973 Roe v. Wade ruling that established a right to abortion. And he said he would give substantial deference to precedent, calling the doctrine of stare decisis --- that court decisions should follow precedent -- a "fundamental part of our legal system."

But Alito said he did not view stare decisis as an "inexorable command."

In the day's most heated exchange, Alito repeatedly deflected Schumer's questions about whether the Constitution protects a right to abortion.

"I would address that issue in accordance with the judicial process as I understand it," Alito said, as Schumer, waving a pocket-size Constitution, grew increasingly agitated.

Alito defended his abortion opinions, including a 1991 dissent written in support of a Pennsylvania law requiring a woman to notify her husband before obtaining an abortion.

"In each instance, I did it because that's what I thought the law required," Alito said.

At times, Republican senators rushed to Alito's defense, highlighting opinions that they suggested showed his evenhandedness as a judge.

One such case was a 1995 opinion in which Alito voted to strike down state limits on Medicaid-financed abortions for poor women, saying they were too restrictive.

"If I had been out to implement some sort of agenda to uphold any abortion regulation that came along, then I would not have voted the way I did," Alito said.

He sought to distance himself somewhat from a 1985 job application in which he expressed pride for his role in cases that argued "that the Constitution does not protect a right to an abortion."

"That was a statement that I made at a prior period of time when I was performing a different role," Alito said. As a judge, he added, "you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues."

He also backed away from a 1985 memorandum he wrote as a Justice Department lawyer in the Reagan administration, in which he laid out a strategy for chipping away at Roe without seeking to overturn it.

"I'm not saying that I made the statement simply because I was advocating the administration's position. But that was the position that I held at the time. And that was the position of the administration," Alito said.

Alito was on the defensive about his initial failure in 2002 to recuse himself from a case involving the Vanguard investment management company, in which he had a financial interest.

"If I had to do it over again, there are things that I would have done differently," Alito said, though he maintained that he violated no ethical standard.

But Democrats, pointing to a pledge Alito made in 1990 as an appellate court nominee to recuse himself from any case involving Vanguard, said the case was disturbing.

Republicans accused Democrats of drumming up phony charges to trip up Alito.

"It's a joke. It's ridiculous. It's absurd," said Sen. Mike DeWine of Ohio. "And everybody on the panel knows it."

Alito was also forced to backtrack, under harsh questioning from Democrats, on his involvement in the Princeton group, Concerned Alumni of Princeton.

"I have racked my memory about this issue, and I really have no specific recollection of that organization," Alito said.

Alito, the son of an Italian immigrant, took pains to disavow the group's values, saying it was throwback to days when Princeton discriminated against minorities.

"Somebody from my background would not have been comfortable in an institution like that," he said.

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What he said

ABORTION: Alito gave no indication how he would vote if faced with the question of whether to overturn Roe v. Wade but said he would approach the issue with an open mind.

WIRETAPS: Alito said the attorney general would not have immunity from civil liability for authorizing warrantless wiretaps. Alito wrote a 1984 memo advocating immunity when the attorney general is acting to protect national security.

EXECUTIVE POWER: Asked if the president could ignore the law, he said that the president cannot override the constitutional statutes.

STUDENT YEARS: He said he had no specific memory of a Princeton alumni group, which critics say opposed the admission of women and minorities.

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