[Mb-civic] Alito Says He'd Keep 'Open Mind' on Abortion - Washington Post

[William Swiggard]

Alito Says He'd Keep 'Open Mind' on Abortion
Nominee Avoids Detailing Views on Controversial Issues

By Charles Babington and Jo Becker
Washington Post Staff Writers
Wednesday, January 11, 2006; A01

Supreme Court nominee Samuel A. Alito Jr. said yesterday that his 1985 
assertion that the Constitution does not protect the right to an 
abortion was a "true expression of my views at the time," but he told 
senators he would "approach the question with an open mind" if confirmed 
to the high court.

Repeatedly asked about abortion rulings that date to the 1973 Roe v. 
Wade case, Alito said long-standing decisions deserve great respect. He 
stopped short of saying Roe could not be overturned, however, saying 
that the doctrine of following precedent is not "an exorable command" -- 
the same language the late Chief Justice William H. Rehnquist once used 
in arguing to overturn Roe .

Abortion was not the only issue for which Alito carefully finessed 
questions, as Judiciary Committee members challenged him to explain past 
statements about presidential authority, police powers, voting rights, 
gun laws, recusal standards and his membership in a controversial 
university alumni group.

Asked about his 1988 declaration that Supreme Court nominee Robert H. 
Bork would have been "overwhelmingly confirmed" if the public had 
understood his views, Alito said he was speaking as a member of the 
Reagan administration and added: "I don't agree with him on a number of 
issues."

And when senators asked how far a president should be allowed to go in 
authorizing surveillance of U.S. citizens, Alito said no one is "above 
the law." But he did not say whether he thinks President Bush's recently 
disclosed order allowing some warrantless wiretaps of calls and e-mails 
is improper or unconstitutional.

While the abortion questions echoed previous Supreme Court nomination 
battles, the National Security Agency wiretap controversy provided new 
grist for Democrats to challenge Alito's governmental philosophies and, 
indirectly, to swipe at Bush on a dispute headed toward congressional 
hearings.

"Time and again, even in routine matters involving average Americans, 
you give enormous, almost total deference to the exercise of 
governmental powers," Sen. Edward M. Kennedy (D-Mass.) told Alito.

The nearly eight-hour session marked senators' first chance to publicly 
question Alito, 55, a federal appellate judge from New Jersey nominated 
by Bush to the pivotal seat of Justice Sandra Day O'Connor, who is 
retiring. Several committee Republicans robustly defended Alito, who is 
widely viewed as more conservative than O'Connor.

But Democrats often portrayed him as too eager to side with the police, 
the president and corporations in disputed matters. They chafed at his 
refusal to wholeheartedly embrace or flatly disavow several contentious 
memos and speeches he wrote in the 1980s as a Reagan administration 
lawyer. Saying he would keep "an open mind" tells people nothing, said 
Sen. Charles E. Schumer (D-N.Y.), because no nominee would be foolish 
enough to say his mind is closed.

While most of the committee's 10 Republicans lobbed soft questions, 
Chairman Arlen Specter (Pa.) -- who supports abortion rights -- began 
the day by quizzing Alito on a 1985 memo in which he wrote that "the 
Constitution does not protect a right to an abortion."

"That was a correct statement of what I thought in 1985 from my vantage 
point in 1985," Alito said, "and that was as a line attorney in the 
Department of Justice in the Reagan administration." When Specter 
reminded Alito that the memo was part of a job application, Alito 
replied: "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."

Like Chief Justice John G. Roberts Jr., whose nomination was confirmed 
in September, Alito told the committee he believes the Constitution 
protects "a right to privacy," but he did not say whether that extends 
to abortion rights. He said he would not characterize a 1992 decision 
known as Planned Parenthood v. Casey -- which reaffirmed Roe -- as a 
"super-precedent."

Schumer repeatedly pressed Alito on whether he still believes that the 
Constitution does not protect a right to an abortion, a question Alito 
declined to answer. At one point, Schumer got Alito to agree that the 
Constitution does protect free speech. So why, Schumer demanded, "can't 
you answer the question of 'Does the Constitution protect the right to 
an abortion?' " When Alito hedged, Schumer charged that "any idea that 
you are approaching this fresh, without any bias" has gone "by the wayside."

Alito noted that as an appellate judge, he twice voted against proposed 
abortion restrictions he considered unlawful. That was proof, he said, 
that he had no "agenda" to chip away at abortion at every opportunity.

Turning to executive powers, the committee's eight Democrats noted that 
Alito, as a Reagan administration lawyer in 1984, wrote that the 
attorney general deserves blanket immunity from lawsuits stemming from 
illegal wiretapping of U.S. citizens. Yesterday, under questions from 
Sen. Patrick J. Leahy (Vt.), he said: "We were not just representing the 
government. We were representing former attorney general [John] Mitchell 
in his individual capacity. . . . And this was an argument that he 
wanted to make." Similar arguments were made by the Carter 
administration, he said.

Alito declined to substantively comment on more current controversies 
involving the Bush administration's tactics in fighting terrorism, 
except to say that he would have to study laws passed by Congress to 
limit the president's power. "These questions that you pose are 
obviously very difficult and important and complicated questions that 
are quite likely to arise in litigation perhaps before my own court or 
before the Supreme Court," he told Specter.

Several Democrats criticized Alito's ruling in a civil case stemming 
from a drug search in which female police officers conducted a strip 
search of the suspected dealer's 10-year-old daughter. Alito ruled that 
the search was reasonable because police had been told the dealer 
sometimes hid drugs on the bodies of people in his house.

"I was not pleased that a young girl was searched in that case, and I 
said so in my opinion," Alito said. "But the issue wasn't whether there 
should be some sort of rule of Fourth Amendment law that a minor can 
never be searched."

Democrats chastised Alito for boasting, in the 1985 job application, of 
his membership in the group Concerned Alumni of Princeton, only to say 
later he could not recall joining it. The now-disbanded group was widely 
criticized for opposing affirmative-action programs that brought more 
women and minorities to Princeton, which Alito attended as an undergraduate.

"I have wracked my memory about this issue, and I really have no 
specific recollection of that organization," Alito told Leahy. The only 
reason he may have joined, he said, was out of anger that Vietnam War 
protesters had forced the ROTC program -- which Alito had joined as an 
undergraduate -- from the campus.

"With all due respect, CAP was most noted for the fact that they were 
worried that too many women and too many minorities were going to 
Princeton," Leahy said. Others noted that ROTC had returned to Princeton 
before 1985.

In the 1985 job application, Alito wrote that he was motivated to study 
law by strong disagreements with 1960s-era Supreme Court decisions, 
particularly in the area of criminal procedures, separation of church 
and state, and legislative reapportionment. Yesterday he said he had no 
issue with one of the most famous decisions, which established the 
one-man, one-vote principle that state legislative districts be roughly 
equal in population. "That's very well settled now," he said.

The only writing that Alito flatly disavowed yesterday was a line from 
his 1985 job application in which he wrote, "I believe very strongly in 
. . . the supremacy of the elected branches of government." Yesterday he 
told Kennedy, "It's an inapt phrase, and I certainly didn't mean that 
literally at the time, and I wouldn't say that today." The judicial 
branch of government is equal to the legislative and executive branches, 
he said.

The hearing is to resume at 9:30 a.m. today.

http://www.washingtonpost.com/wp-dyn/content/article/2006/01/10/AR2006011000198.html?referrer=email
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