Alito won’t prejudge Roe

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.

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