[Mb-civic] Alito on Day 1: 'A Judge Can't Have Any Agenda' - Washington Post

[William Swiggard]

Alito on Day 1: 'A Judge Can't Have Any Agenda'
Court Nominee To Be Questioned By Senators Today

By Charles Babington and Amy Goldstein
Washington Post Staff Writers
Tuesday, January 10, 2006; A01

Samuel A. Alito Jr. sought to reassure senators yesterday that divisive 
policies he once advocated as a government lawyer do not necessarily 
signal how he would rule if confirmed to the Supreme Court, saying a 
judge "can't have any preferred outcome in any particular case."

In his first public statement since President Bush tapped him for the 
high court on Oct. 31, Alito indirectly responded to critics who say his 
writings from his years in the Reagan administration Justice Department 
show he is predisposed to outlaw abortion, restrict affirmative action 
and expand presidential authority, if given the chance.

"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," Alito said during an 
11-minute opening statement to the Senate Judiciary Committee, which 
will begin questioning him today.

"The role of a practicing attorney is to achieve a desirable result for 
the client in the particular case at hand," said Alito, who wrote two 
controversial memos as a Reagan administration lawyer in 1985. "But a 
judge can't think that way. A judge can't have any agenda . . . and a 
judge certainly doesn't have a client. The judge's only obligation -- 
and it's a solemn obligation -- is to the rule of law."

On the first day of his confirmation hearing, Alito, a judge on a 
Philadelphia-based federal appeals court for the past 15 years, 
delivered his statement in measured tones without referring to his 
notes, after listening to three hours of opening statements by the 
committee's 10 Republicans and eight Democrats. Their comments -- before 
and after Alito's statement -- split along party lines, with Republicans 
praising him and Democrats warning that he faces a difficult task in 
trying to convince them he would not shift the court dramatically to the 
right.

Alito, 55, must answer many more questions to meet "the awfully high 
burden of proof of being nominated to the Supreme Court, particularly in 
light of the fact that many of his previous statements and decisions are 
right on the edge of being extreme," Sen. Charles E. Schumer (D-N.Y.) 
told reporters shortly after the nominee's statement, and "in light of 
the fact that Sandra Day O'Connor is the swing vote on the court and he 
is replacing her."

Another committee Democrat, Richard J. Durbin (Ill.), said he and his 
colleagues will press Alito especially hard on the issue of executive 
authority in light of revelations that Bush authorized expanded spying 
on Americans for four years. "You're going to have to go back pretty 
deep into history to find another nominee that will have faced so many 
questions on the power of a president, particularly during a war," 
Durbin told reporters.

Republicans welcomed Alito's chance to begin answering critics after 10 
weeks of often acerbic national debate, in which conservative and 
liberal groups agreed that O'Connor's replacement may have a significant 
and long-lasting impact on a court that frequently splits 5 to 4 on 
high-profile cases. Several said Alito faces a tougher battle than did 
recently confirmed Chief Justice John G. Roberts Jr., who replaced the 
late William H. Rehnquist, a fellow conservative.

Alito "is going to be in for a real hard time" but probably will be 
confirmed on "a close vote," Sen. Lindsey O. Graham (S.C.) told 
reporters. Democrats "see this pick as being a more seismic shift on the 
court," he said.

Committee Democrats showed more skepticism about Alito than they did in 
their opening remarks about Roberts, who was confirmed by the full 
Senate on a 78 to 22 vote.

"To put it plainly, average Americans have had a hard time getting a 
fair shake in his courtroom," said Sen. Edward M. Kennedy (Mass.), 
adding that Alito's overall record "troubles me deeply."

Like other Democrats, Kennedy bored in on what he called Alito's "clear 
record of support for vast presidential authority."

"In decision after decision on the bench, he has excused abusive actions 
by the authorities that intrude on the personal privacy and freedoms of 
average Americans," Kennedy said. "And in his writings and speeches, he 
has supported a level of overreaching presidential power that, frankly, 
most Americans find disturbing and even frightening."

Patrick J. Leahy (Vt.), the committee's ranking Democrat, said: "It's 
important to know whether he would serve with judicial independence or 
as a surrogate for the president nominating him."

Several Democrats also chastised Bush for missing an opportunity to 
diversify the court by appointing a female or minority member.

Committee Republicans devoted less time than they had during Roberts's 
hearing to urging the nominee to refrain from answering too many 
questions. "Now you have that opportunity to set everyone straight on 
your record and your approach to deciding cases," said Sen. Charles E. 
Grassley (Iowa).

Democrats and liberal groups say they are mindful that some past Supreme 
Court nominees -- such as Justice Clarence Thomas -- tried to distance 
themselves from previous statements or suggested they had given little 
thought to contentious issues such as the constitutionality of abortion.

After Alito delivered his statement, Schumer said: "Every nominee has 
used the same empty platitude, they will follow the rule of law as a 
judge. . . . Judge Alito's assurances today provide scant comfort to 
those who want a mainstream judge and demand rigorous questions tomorrow."

Several GOP senators touted Alito's academic credentials, job experience 
and appellate rulings.

Republicans also said the Senate should apply what Sen. Orrin G. Hatch 
(R-Utah) called "a judicial, not a political, standard" to Alito's 
record. They said Democrats are focusing inappropriately on which side 
Alito has taken in cases involving various social issues.

Sen. Sam Brownback (R-Kan.) said: "The idea that there are spots on the 
Supreme Court reserved for certain ideologies is a falsehood. Seats on 
the bench are not reserved for causes or interests."

Still, Judiciary Committee Chairman Arlen Specter (R-Pa.), who supports 
abortion rights, said that "the widespread concern about Judge Alito's 
position on a woman's right to choose" is "perhaps the dominant issue in 
these hearings."

Alito began the day by having breakfast with Bush at the White House. 
Bush walked his nominee into the Rose Garden, where he told reporters 
that "Sam Alito is eminently qualified" for the post. "Sam's got the 
intellect necessary to bring a lot of class to that court. He's got a 
judicial temperament necessary to make sure that the court is a body 
that interprets the law and doesn't try to write the law. . . . I know 
the American people will be impressed, just like I have been impressed."

As he opened the hearing at noon, Specter cited "a heavy sense of 
drama." He said Alito "can look like a flaming liberal or he can look 
like an arch conservative," depending on which of his 4,800 appellate 
cases are being scrutinized.

Throughout most of the first day, Alito sat impassively with his head 
cocked, smiling occasionally as he listened to the Republicans and 
Democrats take turns making their 10-minute statements. Finally, at 3:28 
p.m., it was his moment. The room was silent for a long moment, as the 
nominee poured himself some water and pulled from his jacket pocket a 
folded sheaf of notes that he barely glanced at. In a calm, quiet voice, 
he opened with an old joke about a nervous lawyer's first appearance 
before the Supreme Court, and the punch line led him into a lengthy 
account about his family and other early influences that shaped him.

By day's end, Specter lamented, "so many senators are already in 
concrete" before Alito begins to answer their questions. He blamed a few 
Republicans, but mostly Democrats who he said had arrived with "a long 
statement of charges" rather than an open mind. "I'm determined," 
Specter said, "to see these hearings conducted where we make a decision 
based upon what the nominee says, not what senators say about the nominee."

Meanwhile, the Judiciary Committee received new documents yesterday 
regarding a 1990 promise by Alito to recuse himself in cases involving 
Vanguard Group Inc. and Smith Barney Inc., firms that have handled some 
of his investments.

The documents, which show that neither group was on Alito's recusal list 
from 1993 to 1996, raise new questions about his credibility, Democratic 
staff members said.

Alito made the vow during his 1990 confirmation hearings to become a 
federal appellate judge but ruled on a case involving Smith Barney in 
1996 and another involving the Vanguard Group in 2002.

Alito did not profit from either case, but Democrats have criticized his 
explanations. Concerning Vanguard, the White House initially blamed a 
computer glitch, and Alito subsequently said that he was not required to 
recuse himself because there was no conflict of interest and that the 
1990 promise applied only to his first few years on the bench.

Said White House spokesman Steve Schmidt: "Multiple ethics experts have 
made clear that any insinuation that Judge Alito did anything improper 
is absurd. . . . Judge Alito looks forward to answering questions about 
this matter."

http://www.washingtonpost.com/wp-dyn/content/article/2006/01/09/AR2006010900669.html?referrer=email
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