Alito vows ‘open mind’ on abortion

WASHINGTON – Supreme Court nominee Samuel Alito said Tuesday 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 Justice William 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 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. residents, 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 Kennedy, D-Mass., told Alito.

The nearly eight-hour session marked senators’ first chance to publicly question Alito, 55, an 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 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, R-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. Tuesday, under questions from Sen. Patrick Leahy, D-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 racked 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. Tuesday 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 Tuesday 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.” Tuesday 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 will resume today.