- The Washington Times - Tuesday, January 10, 2006

With the calm, clear and reasoned testimony of a careful jurist, Judge Samuel Alito demonstrated yesterday why President Bush nominated him for the Supreme Court in the first place. It will be exceedingly difficult for Democrats to paint him as outside the mainstream; he is simply too reasonable.

Asked by pro-choice Republican Sen. Arlen Specter how he would handle abortion, Judge Alito said he would approach it with “an open mind.” He explained that “the first question I would ask” in abortion cases would be the question of stare decisis — respect for precedent. At the same time, he carefully noted that stare decisis is not an “inexorable command.” He pledged to put his personal views aside: A 1985 statement of personal opposition to abortion was “a true expression of my views at the time” when “performing a different role” as a government lawyer, the judge said. But how he would actually rule is anyone’s guess — it would depend on the specifics of the case, as it should. Anyone reading the tea leaves here misses the important statement of respect for the office and its traditions.

Attacked by Sen. Ted Kennedy with charges of being “overly deferential to executive power” and “bend[ing] over backwards” in favor of government, and later questioned about domestic spying operations, Judge Alito explained that “one of the most solemn responsibilities of the president — and it’s set out expressly in the Constitution — is that the president is to take care that the laws are faithfully executed and that means the Constitution. It means statutes. It means treaties. It means all of the laws of the United States.” He summed it up speaking to Sen. Patrick Leahy: “No person in this country is above the law and that includes the president and the Supreme Court.”

The theory of the “unitary” executive was tossed around in yesterday’s hearings inasmuch as Mr. Kennedy could malign it; Judge Alito’s views were far from the caricature Mr. Kennedy and others painted. First Judge Alito backtracked on a onetime statement that the two elected branches of government are superior to the judiciary, calling his own words “inapt.” The judge said he wouldn’t use the same words today. Then, on the critical test of domestic spying, he remarked, “I think in the first instance, the government would have to come forward with its theory as to why the actions that were taken were lawful … If someone has been the subject of illegal law enforcement activities, they should have a day in court.”

Even on the facts of case law, Judge Alito explained calmly, as though to a friend or student, what pieces of the puzzle were missing. Judge Alito has nothing against dairy farmers nor does he support strip-searching children, two groups Mr. Kennedy charged him with mistreating; he supports “qualified immunity defense” as a legal doctrine that protects the good-faith actions of government agents doing their job.

Day two of the confirmation hearings was a good one for Judge Alito. The case for his confirmation is stronger.

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