Knight Ridder Newspapers

WASHINGTON – Conceding a fundamental building block of abortion law, Supreme Court nominee Samuel Alito said Tuesday that the Constitution protected a right to privacy and that court precedents upholding the right to an abortion were “an important part of the law.”

Alito also voiced a cautionary view of presidential power and stressed that individual liberties must be protected in “times of peace and times of war.”

But he stopped short of answering specific questions about President Bush’s decision to secretly wiretap U.S. residents without warrants, arguing that a case challenging the program could end up before him as a judge.

The first day of questioning in Alito’s confirmation hearing featured sparring with Senate Judiciary Committee members on issues ranging from Alito’s membership in a conservative Princeton University alumni group to his appellate court rulings in discrimination cases and his participation in a case involving a mutual fund that he’d invested in.

Throughout the day, Alito appeared composed and alert, even when confronted by his fiercest critics. He took no notes and answered in a slow, deliberate manner. He sat alone at the witness table, listening with a slight tilt of his head, never once consulting with the battery of administration officials sitting behind him.

Alito answered virtually all the questions put to him, an openness that prompted Judiciary Chairman Sen. Arlen Specter, R-Pa., to describe the session as “unusual” for Alito’s candor.

But Sen. Patrick Leahy of Vermont, the top Democrat on the committee, said Alito didn’t live up to the frankness displayed by Chief Justice John G. Roberts Jr. during his confirmation hearings. Leahy was one of two Democrats on the Judiciary Committee to vote for Roberts.

“Judge Alito needs to do more than distance himself from his early, troubling writings and views – he needs to explain why his views are different today and that what he says is not simply the pledge of an eager applicant trying to win a job,” Leahy said.

Alito bristled only once, when Sen. Russell Feingold, D-Wis., asked him whether Bush administration officials had coached him on his answers to the committee.

“I have been a judge for 15 years and I’ve made up my own mind during all that time,” Alito said.

Alito said he decided cases based on the law and the facts, not his personal views or a broader political agenda. He portrayed himself as a legal technician, not an ideologue.

“My philosophy of the way I approach issues is to try to make sure that I get right what I decide,” he said. “And that counsels in favor of not trying to do too much, not trying to decide questions that are too broad, not trying to decide questions that don’t have to be decided and not going to broader grounds for a decision when a narrow ground is available.”

Several senators from both major parties quizzed Alito about his views on presidential power and whether he’d be willing to exercise the judicial check on executive authority.

In pointed exchanges, Alito said he’d have no problem holding the president’s power to the bounds set by the Constitution and the law.

“Are there instances where a president could be above the law or could put others beyond the law?” Leahy asked.

“The president has to follow the Constitution,” Alito said. “No one is above the law.”

He sidestepped the debate over the Bush administration’s power to eavesdrop on Americans without court approval but said there were instances in which assertions of executive power raised questions.

“You have to know the specifics,” he said, before passing any judgment. But he repeated, “The president has to comply with the Constitution, and with statutes that are passed.”

Specter asked Alito about a 1952 Supreme Court ruling that prevented President Harry Truman from seizing steel factories during the Korean War.

“It doesn’t answer every question that comes up in this area,” Alito said. “But it provides a useful way of looking at them.”

Sen. Edward Kennedy, D-Mass., was more forceful, saying the nominee showed almost single-minded deference to authority. He quoted from an Alito speech in which he said he believed in the supremacy of the elected branches over the judiciary.

Alito said that was an “inapt” phrase and he was merely trying to convey the importance of a limited role for the judiciary, the one unelected branch.

Sen. Charles Schumer, D-N.Y., accused Alito of having only a passing respect for precedent, and he produced a chart of several cases in which the judge’s colleagues criticized him for departing from established law in rulings. Schumer also sparred with Alito over a 1985 job application in which the judge expressed a personal belief that Roe v. Wade should be overturned. Schumer asked Alito whether he still believed that.

Alito told Schumer that each of his cases departing from precedent must be evaluated on its own, discouraging any attempt to lump the rulings together. And he said the language of the 1985 memo reflected his view at the time, but he declined to say whether it remains his opinion, citing the possibility of abortion cases coming to the court.

Stands on record

In response to earlier questions about abortion, Alito pointed to his record as a judge. He supported a Pennsylvania law that would have required a woman to notify her husband before getting an abortion. But he voted to strike down a New Jersey ban on late-term abortions and he was the deciding vote striking down a Pennsylvania law that restricted Medicaid-paid abortions for women who are victims of rape or incest.

“If I had had an agenda to … uphold any regulation of abortion that came up in any case that was presented to me, then I would have voted with (the dissenting judge) in that case and that would have turned the decision the other way,” he said.

He resisted Specter’s description of some court precedents as “super precedents” or “super duper precedents.”

“It sort of reminds me of the size of laundry detergent in the supermarket,” he said, prompting a wave of laughter.

“Sometimes changes in the situation in the real world can call for the overruling of a precedent,” he said.

Several Democrats quizzed Alito over his membership in the Concerned Alumni of Princeton, a conservative group founded in 1972 that objected to Princeton’s admittance of women and later questioned the use of affirmative action in admitting minorities. Alito mentioned his membership in the group in the 1985 application for a Justice Department promotion.

Alito said Tuesday that he didn’t recall why or when he joined the group. He said he wasn’t active in it and that he rejected many of the views that it embraced.

A Knight Ridder analysis of Alito’s record on the federal appeals bench also was raised in Tuesday’s hearing. The story concluded that Alito was a consistent conservative who seldom sided with criminal defendants, plaintiffs alleging employment discrimination, consumers suing businesses or foreign nationals facing deportation. Sen. Jon Kyl, R-Ariz., said the story “has, to my understanding, been rather completely discredited.” The Republican National Committee issued a press release attacking the story.

Clark Hoyt, Knight Ridder’s Washington editor, said the press release “did not deal directly with the story at all but quoted partisan attacks on it. The story was a careful, accurate analysis by two professional reporters who, to the best of my knowledge, are the only journalists to have read every single one of Judge Alito’s 311 published opinions. Their conclusions were supported by other independent studies, including one by Yale Law School.”

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