Alito's views reviewed by panel


Published: Thursday, January 12, 2006 at 6:01 a.m.
Last Modified: Thursday, January 12, 2006 at 12:00 a.m.
WASHINGTON - Democrats tried with increasing frustration Wednesday to elicit more specific views from Judge Samuel A. Alito Jr. about abortion and other topics and sought to build a case against his nomination to the Supreme Court by raising questions about his character and consistency.
From the opening moments of the third day of hearings on the nomination before the Senate Judiciary Committee, Democrats, aware that Alito had made it through the first two days without any significant damage to his prospects of confirmation, struck an aggressive tone.
They challenged Alito on elements of his record and statements he made during questioning on Tuesday. And they successfully pressed the panel's Republican chairman, Sen. Arlen Specter, to obtain records that they said might shed light on the nominee's membership in a Princeton alumni group that has been characterized as opposing co-education and affirmative action.
Sen. Patrick J. Leahy of Vermont, the committee's ranking Democrat, started the proceedings by stating that members of his party "have been troubled by what we see as inconsistencies in some of the answers" from Alito on subjects including voting rights, presidential power, the nominee's failure to recuse himself on a case involving a potential conflict of interest and his involvement with the Princeton alumni group.
Rebutting the nominee's statement on Tuesday that he would bring to the court an "open mind" on abortion rights, Sen. Richard J. Durbin, D-Ill., said the memo Alito wrote in 1985 stating that he did not believe there was a constitutional right to abortion "evidences a mind that, sadly, is closed in some areas."
The partisan volleys seemed to sail over or past Alito, who politely but resolutely declined to be drawn out on his thinking about abortion, executive authority and other issues, and often sat impassively as the members of the committee debated his qualifications and forthrightness.
"Your critics are, I think, grasping at any straw to tarnish your record, and that's unfortunate," said Sen. Charles E. Grassley, R- Iowa.
But the Democratic questions and implications about her husband's record appeared to get to Alito's wife, Martha. She began crying as Sen. Lindsey Graham, R-S.C., defended her husband's character and rejected any suggestion that his membership in the Princeton alumni group made him a bigot. Martha Alito retreated to an anteroom, sobbing for some minutes.
"Let me tell you, this guilt by association is going to drive good men and women away from wanting to sit where you're sitting," Graham said.
Democrats and their staff aides on the committee said that they were resigned to the fact that Alito will win approval on the committee with its 10-member Republican majority. All of the committee's eight Democrats appear likely to vote against the nomination.
The Democratic strategy deployed Wednesday appeared to be aimed at raising questions about the credibility of Alito's explanations about the Princeton alumni group and the recusal issue that could be used in the floor debate on confirmation.
The most intensive substantive exchanges on Wednesday were once again over abortion. Alito repeatedly turned aside efforts by Durbin and other Democrats to get him to agree that Roe v. Wade, the landmark 1973 Supreme Court decision that established that there is a constitutional right to abortion, was "settled law," a phrase that Chief Justice John G. Roberts Jr. assented to in describing the case during his confirmation hearings last year.
Alito would agree only with the proposition that Roe is an important precedent that should be given deference like any other precedent relevant to an ongoing constitutional dispute.
"It is a precedent that has now been on the books for several decades," Alito said. "It has been challenged. It has been reaffirmed. But it is an issue that is involved in litigation now at all levels."
Durbin responded that he was "concerned that many people will leave this hearing with a question as to whether or not you could be the deciding vote that would eliminate the legality of abortion, that would make it illegal in this country, would criminalize the conduct of women who are seeking to terminate pregnancies for fear of their lives and the doctors who help them."
Overturning Roe would not make abortion illegal but would leave the question in the hands of states.
In a colloquy with Sen. Dianne Feinstein, D-Calif., Alito sought to explain why he agreed to comment on other landmark cases like those that outlawed segregation and guaranteed one-person, one-vote, but would not engage in a discussion of Roe.
Feinstein asked if Alito did not agree that Roe "was well settled in court." He replied that, "It depends on what one means by the term 'well settled'."
Feinstein said she understood that it was politically difficult to answer such a sensitive question and added, "But the people are entitled to know."
Alito said that it was reasonable to presume that the issues of school desegregation and one-person, one-vote are beyond judicial debate, while aspects of the abortion issue continue to come before the courts.
"I don't think it's appropriate for me to speak about issues that could realistically come up." he said. "And my view of Brown v. Board of Education, for example, which was one of the cases that was cited in connection with this issue about where someone in my position should draw the line, seems to me to embody a principle that is now not subject to challenge, not realistically subject to being challenged."
Democrats also made another attempt to link Alito to the views expressed by some members of Concerned Alumni of Princeton, a group that Alito reported being a member of in 1985 when he applied for a job in the Reagan administration.
Sen. Edward M. Kennedy, D-Mass., read passages from an essay published in 1983 in a magazine put out by the alumni organization. "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 that government vouchsafe them the right to bear children," the essay said, according to Kennedy.
Kennedy asked whether Alito had read the essay. Alito responded that he had not, that he had not known at the time that members of the group espoused such views and that the sentiments expressed in the passage read by Kennedy were antithetical to his.
Kennedy suggested that Alito had not provided an adequate explanation of why he had joined the group and included it in an application for a job in a conservative administration. The senator said he still had questions about "this sort of radical group and why you listed it on your job application," and said Alito's explanations did not "add up."
Kennedy, seemingly trying to inject some vigor into a lagging effort to defeat the nomination, then provoked a confrontation with Specter by demanding the chairman take the committee into executive session to subpoena documents about the alumni group that are held by the Library of Congress.
Specter, clearly annoyed, said he would consider the issue, suggesting that Kennedy delayed making his request so he could present it at the hearing for dramatic effect. After a lunch break, Specter announced there was agreement to review the documents and Democratic and Republican lawyers went to the Library of Congress to study them.
The New York Times has previously reviewed the documents, which are in the papers of William A. Rusher, an early leader of the Princeton group and a former publisher of National Review. The Times reported in November that those documents and others at Princeton gave no indication that Alito was among the major donors to Concerned Alumni of Princeton and was not active in the organization.
In an online interview with National Review on Wednesday, Rusher said he had no recollection of Alito. "He certainly was not very heavily involved in CAP, if at all," Rusher said.
Sen. Joseph R. Biden Jr., D-Del., raised the possibility that Alito had noted his membership in the Princeton group in 1985 as a way to signify his conservative leanings and enhance his chances of getting hired in the Reagan administration. In later comments to Sen. Charles E. Schumer, D-N.Y., Alito appeared to accept that explanation himself.
"I was applying for a position in the Reagan administration. And my answers were truthful statements, but what I was trying to outline were the things that were relevant to obtaining a political position," he said when Schumer asked why he listed the Princeton group as only one of two organizations to which he belonged. "I mentioned some very minor political contributions. I didn't mention contributions to charitable organizations."

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