- The Washington Times - Tuesday, January 10, 2006

Judge Samuel A. Alito Jr. told senators yesterday that he would approach any abortion case before the Supreme Court with an “open mind,” but left himself plenty of room to overturn the decision that made abortion a constitutional right if given the chance.

Of the three abortion cases he’s heard while sitting on the 3rd U.S. Circuit Court of Appeals, Judge Alito has upheld abortion restrictions in one and struck them down in two.

“In each instance, I did it because that’s what I thought the law required,” he said in response to questions about a 1985 job application essay in which he said the Constitution does not contain a right to abortion.

But, he added later in yesterday’s hearing before the Senate Judiciary Committee, the Supreme Court precedents on abortion are not sacred.

“It is a general presumption that courts are going to follow prior precedents,” Judge Alito said, a reference to the 1973 ruling in Roe v. Wade. But “it’s not an inexorable command.”

But Sen. Charles E. Schumer, New York Democrat, seemed fairly sure where Judge Alito stood after nearly 30 minutes of questioning.

“We can only conclude that if the question came before you, it is very likely that you would vote to overrule Roe v. Wade,” he told the nominee.

Abortion was among a wide range of issues about which Judge Alito was questioned yesterday during about 10 hours of testimony.

It was a day of some sharp exchanges but no major revelations that would doom his nomination to become the 110th justice of the U.S. Supreme Court, succeeding Justice Sandra Day O’Connor, a frequent swing vote on the court.

Republican staffers said privately that Democrats have been so docile in questioning Judge Alito that they fear they might have some blockbuster hidden up their sleeves.

Judiciary Committee Chairman Arlen Specter suggested that the hearing was going smoothly because the nominee is answering more questions than many nominees do, including Chief Justice John G. Roberts Jr.

“Judge Alito has answered all the questions,” the Pennsylvania Republican said. “It’s been an unusual proceeding from that point of view.”

Although he’s avoided compromising his independence on cases that might come before him on the Supreme Court, Judge Alito has freely discussed “the factors and circumstances that he would be looking toward,” Mr. Specter said. “And I think that’s a very good approach.”

A top area of concern for Democrats was Judge Alito’s initial failure to recuse himself from a case before him involving Vanguard Inc., the company that handles the nominee’s investment portfolio.

Although Judge Alito never violated any ethics rules, Democrats said he violated a promise to the committee 15 years ago to remove himself from any such case. Yesterday, he said it was an oversight, and he recused himself as soon as he realized his mistake.

“If I had to do it over again, there are things that I would do differently,” Judge Alito said.

Sen. Charles E. Grassley, Iowa Republican, told Judge Alito that his memory lapse was no big deal.

“Let me assure you, don’t lose any sleep over that,” he said. “If senators kept every word they made to their constituents, there wouldn’t be any senators left.”

Democrats also quizzed Judge Alito about his past statements on presidential authority.

Sen. Edward M. Kennedy, Massachusetts Democrat, reminded him of a 1985 statement in which he wrote, “I believe very strongly in the supremacy of the elected branches of government.”

“It’s an inapt phrase,” Judge Alito told Mr. Kennedy yesterday. “I certainly didn’t mean that literally at the time, and I wouldn’t say that today. The branches of government are equal.”

Concerns about presidential authority are heightened in the wake of revelations about President Bush’s approval of warrantless eavesdropping involving terrorism suspects.

Judge Alito said the Bill of Rights applies “in times of war and in times of national crisis,” but said he could not answer questions on the propriety or constitutionality of the National Security Agency program because it “is very likely to result in litigation in the federal courts” and “certainly could get to the Supreme Court.”

Democrats also tried linking Judge Alito and former Judge Robert H. Bork, whose nomination to the Supreme Court by President Reagan ended in defeat. They read back statements Judge Alito made at the time that were supportive of Judge Bork.

“I was an appointee in the Reagan administration and Judge Bork had been a nominee of the administration and I had been a supporter of the nomination,” Judge Alito replied.

By last night, Democrats were not proclaiming any major victories, but said Judge Alito’s testimony had not eased their concerns about his judicial integrity and credibility.

But at least one leading liberal saw the abortion exchange with Mr. Schumer as the highlight.

“I have been involved in judicial nominations debates for thirty years, and I have never seen a stronger performance by a senator than we saw from Senator Schumer today,” said Ralph G. Neas, president of People for the American Way. “He was clear, focused on questions of critical importance, and tenacious in seeking answers on behalf of the American people. It was a masterful job.”

The highlight for others, however, came when Sen. Lindsey Graham, South Carolina Republican, apologized to Judge Alito for his colleagues’ insistence upon repeatedly asking the same questions about the Vanguard matter.

“I hope you’ll understand if any of us come before a court and we can’t remember [Jack] Abramoff, you will tend to believe us,” Mr. Graham said.

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