Da The Washington Post del 11/01/2006
Originale su http://www.washingtonpost.com/wp-dyn/content/article/2006/01/11/AR2006...

Senators Unable to Draw Out Alito's Views on Abortion

di William Branigin

Supreme Court nominee Samuel A. Alito Jr. underwent a second day of grilling before a Senate panel today, refusing to be drawn out on his views on abortion and defending himself from Democratic charges that he tends to favor institutions over individuals in deciding court cases.

Alito, 55, a federal appeals court judge nominated by President Bush to the Supreme Court, declined to say whether he believes Roe v. Wade , the landmark 1973 ruling that legalized abortion, is "settled law," instead describing it only as a "precedent" worthy of respect. His answers contrasted with those of Chief Justice John G. Roberts Jr., who said before becoming a judge that Roe v. Wade was "the settled law of the land."

President Bush nominated Judge Samuel A. Alito Jr. to the Supreme Court on Oct. 31, 2005. If confirmed, Alito will fill the seat currently held by retiring Justice Sandra Day O'Connor.

As the third day of Alito's confirmation hearings began -- the first day was devoted to opening statements -- Senate Judiciary Committee Democrats expressed unease with some of his answers so far, and members of the panel's Republican majority sprang to his defense.

"A number of us are troubled by what we see as inconsistencies in some of the answers, and we're going to want to go into those in some depth," said Sen. Patrick J. Leahy of Vermont, the top Democrat on the committee. He cited Alito's replies on the issues of voting rights, his failure to recuse himself in a case involving a mutual fund in which he had invested, his support for the "unitary theory of government" and his membership in a controversial Princeton University alumni group that allegedly resisted admissions of women and minorities.

Tempers flared over questions on the conservative group, Concerned Alumni of Princeton, when Sen. Edward M. Kennedy (D-Mass.) called on the committee to subpoena the group's records. Kennedy questioned Alito closely about his membership in the group, which Alito cited in a 1985 application for a job in the Reagan administration.

The senator read statements from the group's magazine, Prospect, that appeared to be racist, sexist, homophobic and hostile to the disabled. He cited a 1983 article entitled "In Defense of Elitism" that said, "People nowadays just don't seem to know their place. Everywhere one turns, blacks and Hispanics are demanding jobs simply because they're black and Hispanic. The physically handicapped are trying to gain equal representation in professional sports. And homosexuals are demanding the government vouchsafe them the right to bear children."

Alito said he disagreed with those views and would not have associated himself with the group if he had known that it held them.

An angry exchange ensued between Kennedy and Sen. Arlen Specter (R-Pa.), the chairman of the Judiciary Committee, when Kennedy pressed for a subpoena and complained when Specter did not immediately agree to issue one. Kennedy said he has written to Specter last month on the matter and threatened to call for votes again and again if his request were ruled out of order.

Specter insisted that he had not received the letter and angrily told Kennedy, "I'm not going to have you run this committee." Specter said this was the first time the subpoena request had been called to his attention "and we will consider it in due course."

Sen. Richard J. Durbin (D-Ill.) took up the Democratic criticism of Alito, challenging him anew on a 1985 memo he wrote that said the Constitution does not protect a right to have an abortion. Durbin said the memo, written when Alito was a Justice Department lawyer in the Reagan administration, "evidences a mind that sadly is closed in some areas." The senator voiced skepticism about Alito's assertions yesterday that he would keep "an open mind" if an abortion case came before him on the Supreme Court.

While Alito has specifically backed Supreme Court rulings that advanced rights to privacy and equality, "you can't bring yourself to say you find constitutional support for a woman's right to choose," Durbin told the nominee. Nor, he added, has Alito been willing to explicitly repudiate his statement in the 1985 memo.

Alito said he was more able to comment on the rulings Durbin mentioned than on an issue -- abortion rights -- that is currently involved in litigation that might eventually come to the Supreme Court.

Pressed by Durbin to say whether he considers Roe v. Wade "the settled law of the land," Alito said it is "an important precedent of the Supreme Court" that has been challenged on a number of occasions and reaffirmed by the Supreme Court, which "strengthens its value as stare decisis ," a Latin term meaning to stand by that which is already decided.

"If settled means that it can't be reexamined, then that's one thing," Alito said. "If settled means that it is a precedent that is entitled to respect as stare decisis and all of the factors that I've mentioned come into play, including the reaffirmation and all of that, then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis in that way."

Sen. Sam Brownback (R-Kan.), a strong opponent of abortion, later used his round of questioning to raise doubts about "how settled" Roe v. Wade really is. He cited legal opinions that described the ruling as constitutionally indefensible, but he did not attempt to get Alito to express his own views on the matter.

Sen. Orrin Hatch (R-Utah) disputed Durbin's assertion that Roberts had described Roe as "settled law" during his confirmation hearing in September to be chief justice, saying he had done so earlier when he was up for confirmation as a federal appeals court judge and was bound to obey high court rulings.

In his September confirmation hearing, Specter asked Roberts what he meant by his earlier widely quoted statement that "Roe is the settled law of the land." Roberts replied that "it's settled as a precedent of the court."

Durbin also challenged Alito on some of his opinions during 15 years as a judge on the U.S. Court of Appeals for the 3rd Circuit, based in Philadelphia. In a number of cases, "you end up ruling in favor of established institutions and against individuals," said Durbin.

"It's a recurring pattern," Durbin said. Quoting a line from Bruce Springsteen, a rock singer admired by Alito, the senator said, "The 'crushing hand of fate' here seems to always come down against the workers and the consumers and in favor of these established institutions and corporations."

Alito disputed that characterization, saying, "There have been many other cases that I have worked on on the court of appeals where I have come out in favor of the small person, who was challenging a big institution."

He said later that he did not think judges "should keep a scorecard" on how they vote in particular categories of cases.

Republican senators backed Alito, citing cases that they said showed the nominee to be even-handed.

Leahy, the committee's ranking Democrat, later questioned Alito on the president's power to order surveillance of Americans, an issue that has surfaced with the disclosure last month that Bush authorized the National Security Agency to conduct a warrantless domestic spying program following the Sept. 11, 2001, terrorist attacks.

Asked if the president could "order the FBI to conduct surveillance in a way not authorized by statute," Alito said, "The president is subject to constitutional restrictions, and he cannot lawfully direct the FBI or anybody in the Justice Department or anybody else in the executive branch to do anything that violates the Constitution."

Alito said that if the president does not follow a statute and the matter is challenged in court, "the president isn't going to have the last word on that question. . . . And the courts would exercise absolutely independent judgment on that question. It is emphatically the duty of the courts to say what the law is when constitutional questions are raised in cases that come before the court."

Said Leahy, "Now, that is an answer I agree with."

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