Judge Alito Proves a Powerful Match for Senate Questioners
By ADAM LIPTAK
and ADAM NAGOURNEY
WASHINGTON, Jan. 10 - If Senate Democrats had set out to portray Judge Samuel A. Alito Jr. as extreme on issues ranging from abortion to government surveillance of citizens, they ran up against an elusive target on Tuesday: Samuel A. Alito Jr. For nearly eight hours, Judge Alito was placid, monochromatic and, it seemed, mostly untouchable.
Unlike the testimony of John G. Roberts Jr., who had often declined to answer questions on various grounds, among them that certain issues might come before him as chief justice or that his older writings did not necessarily reflect his current views, Judge Alito's default impulse frequently seemed to be to try to give a direct response to the senators' often rambling questions.
Failing that, he offered what he presented as clarifications of earlier statements or writing, sanded of any rough edges, or said he simply could not recall details about some past chapter of his life that had raised concern among senators. Only in one exchange did he appear rattled, refusing to give a direct answer when Senator Charles E. Schumer of New York asked him if he still held a view, expressed in 1985, that there was no constitutional right to abortion.
For the most part, his handling of questions from Democrats had the effect of leaving his questioner shuffling through papers in search of the next question.
Judge Alito was not Judge Roberts, to be sure - far less personable, rarely smiling and struggling to draw even the occasional burst of laughter. But he came across as far less ideological than Democrats have suggested, undercutting their efforts to stir public opposition by portraying his writing as outside the American mainstream.
Yes, he said, he once believed that there was no constitutional right to abortion, but at the time he was merely a "a line attorney in the Department of Justice in the Reagan administration," and he would keep an open mind should abortion come before him at the Supreme Court.
Not even a president is above the law, he said, though he added that he did not have enough information to say if he agreed that President Bush had broken the law by authorizing extensive domestic eavesdropping without warrants.
He claimed no memory of having been active in Concerned Alumni of Princeton, which opposed the university's affirmative action program for minorities, despite listing his affiliation with the group in a 1985 job application. That lack of memory "left some of us puzzled," said Senator Joseph R. Biden Jr. of Delaware.
Even when he was pressed to offer his opinion on the landmark Supreme Court decision that awarded the 2000 presidential election to Mr. Bush, Judge Alito said he had not given the case enough attention to offer an opinion, an assertion that left his questioner, Senator Herb Kohl, Democrat of Wisconsin, rolling his eyes.
But at other times, he silenced Democrats by the directness of his responses. Asked by Senator Edward M. Kennedy of Massachusetts about an endorsement of "the supremacy of the elected branches of government" in the 1985 job application, Judge Alito simply disavowed it.
"It's an inapt phrase," he said, "and I certainly didn't mean that literally at the time, and I wouldn't say that today. The branches of government are equal."
Mr. Kennedy followed up. "So you've changed your mind?" he asked.
"No, I haven't changed my mind, senator," Judge Alito responded. "But the phrasing there is very misleading and incorrect."
To a large extent, Judge Alito's success at skating though a good deal of the day reflected the quality of the questioning. The senators frequently did not follow up on their own queries, and Mr. Biden in particular devoted most of his 30 minutes to talking, leaving little time for the nominee to speak.
Mr. Schumer, whose questioning left Judge Alito looking wobbly and pale, was an exception, as was Senator Dianne Feinstein of California, who pressed him on his views about the Supreme Court's authority to overrule precedent. Early in the day, Judge Alito said there "needs to be a special justification for overruling a prior precedent."
Ms. Feinstein asked for an example of such a justification. It took four attempts, but Judge Alito finally listed some decisions in which such justifications figured.
Like Judge Roberts, Judge Alito declined to adopt the terminology of the Judiciary Committee chairman, Senator Arlen Specter of Pennsylvania, that the status of Roe v. Wade was "super precedent" or "super duper precedent," a reference to the fact that its core holding had been reaffirmed in later cases. "It sort of reminds me of the size of laundry detergent in the supermarket," Judge Alito said, in one of the very few comments he made that gave rise to laughter.
The nominee said he did believe there was a constitutional right to privacy, based on a 1965 Supreme Court case that overturned a Connecticut law prohibiting married couples from using contraceptives, though he did not take it the next step to argue that such a provision could be extended to abortion.
At a time when members of Congress from both parties are increasingly concerned that the White House has become overly empowered, he also said the president did not have a "blank check" to do what he wanted.
When several Democrats pressed him on a statement he once made calling Judge Robert H. Bork "one of the most outstanding nominees" for the Supreme Court in this century, he said that he had been speaking only in his role as a member of the Reagan administration and that he in fact did not agree with some of Judge Bork's positions.
Judge Alito's command of the law was impressive, but it did not have Judge Roberts's effortless, Olympian quality. In responding to one of many questions about presidential power, for instance, he slightly misstated an element of the framework set out in a 1952 concurring opinion by Justice Robert H. Jackson.
"Do you believe the president has the constitutional authority as commander in chief to override laws enacted by Congress?" asked Senator Patrick J. Leahy, Democrat of Vermont.
"Where the president is exercising executive power in the face of a contrary expression of Congressional will," Judge Alito said, "you'd be in what Justice Jackson called 'the twilight zone,' where the president's power is at its lowest point."
Judge Alito's larger point in describing the opinion was correct, but Justice Jackson's reference to a "zone of twilight" was not to situations where Congress had spoken but, as Justice Jackson wrote in 1952, to "when the president acts in absence of either a Congressional grant or denial of authority."
Senator Jon Kyl, Republican of Arizona, asked Judge Alito, as he had asked Judge Roberts, whether it was appropriate for American courts to look to the precedents of foreign courts. The differences in their responses were illuminating.
Judge Roberts was crisp. "Looking at foreign law for support," he said, "is like looking out over a crowd and picking out your friends. You can find them. They're there. And that actually expands the discretion of the judge."
Judge Alito was more methodical. "I don't think that foreign law is helpful in interpreting the Constitution," he said, adding that it might be helpful in other contexts, including the interpretation of treaties and of issues in private lawsuits.
Asked by Senator Kyl why he wanted to serve on the Supreme Court, Judge Alito gave an answer that contrasted with Judge Bork's famous response in 1987. Judge Bork, whose nomination was defeated, said the court's work would be "an intellectual feast."
Judge Alito gave a blander, almost bureaucratic answer.
"I think it's an opportunity for me to serve the country," he said, "using whatever talent I have." |
