Alito Tells Skeptical Democrats He Would Keep an Open Mind

Supreme Court nominee Samuel A. Alito Jr. sought to distance himself Tuesday from conservative political opinions he expressed more than 20 years ago, stressing in his confirmation hearing that good judges did not allow personal views to color their legal judgments.

But his comments were greeted with skepticism by Democrats on the Senate Judiciary Committee, who said Alito’s views as a Reagan administration lawyer probably signaled how he would rule as a justice -- especially on abortion.

On his first day of questioning by the committee, Alito changed the script used by some previous high court nominees -- including Chief Justice John G. Roberts Jr. -- who frustrated lawmakers by declining to answer questions on various legal issues because, they said, they might have to rule on them. By contrast, in a steady, dispassionate voice, Alito offered more expansive replies.

Several queries focused on whether the president had the right to skirt federal laws on the treatment of prisoners of war or on warrantless wiretaps.

The issues have been spotlighted recently by White House efforts to block a congressional ban on torturing “enemy combatants” and the revelation that after the Sept. 11 terrorist attacks, President Bush authorized wiretapping inside the United States without court approval.

“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,” Alito said. “It means statutes. It means treaties. It means all of the laws of the United States.”

On another subject, Alito stopped short of disavowing his past view that the Constitution did not protect the right to an abortion, but said that on the high court he would keep in mind rulings to the contrary. A federal abortion right was first established by the Supreme Court in its 1973 Roe vs. Wade decision.

Alito, 55, expressed disagreement with the ruling in his 1985 application for a promotion in the Justice Department -- a document Democrats on the Judiciary Committee repeatedly referred to Tuesday.

The federal appeals court judge said that as a Supreme Court justice, he would maintain an open mind when hearing cases, including those on abortion rights.

“When someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues,” Alito said.

“A judge doesn’t have an agenda,” he said. “And a judge has to follow the law.”

Sen. Patrick J. Leahy of Vermont, the committee’s top Democrat, said Alito needed “to do more than distance himself from his early troubling writings and views -- he needs to explain why his views are different today, and that what he says [now] is not simply the pledge of an eager applicant trying to win a job.”

During nearly 10 hours of nationally televised testimony, Alito displayed little emotion or nervousness, even under hostile questioning. He took pains to be polite when senators interrupted him, and displayed anger just once. That occurred when Sen. Russell D. Feingold (D-Wis.) suggested that the White House might have coached his responses to questions on torture and wiretapping.

“Absolutely not,” Alito said brusquely. “I’ve been a judge for 15 years. And I’ve made up my own mind during all of that time. I just want to make that clear.”

From the opening moments, Alito comfortably and confidently discussed his views of the Constitution and presidential powers.

Republicans praised him for being more forthcoming than previous nominees.

“You’ve gone into more detail and talked closer to questions that may come up before you -- without going too far, in my opinion -- than we’ve seen before,” said Sen. Jeff Sessions (R-Ala.).

Democrats accused Alito of talking at length without saying much.

“You know, we know very little more about Judge Alito now than we knew when the hearings began,” said Sen. Charles E. Schumer (D-N.Y.). “He has talked in very broad generalities and said things that everyone would agree with and tells no one about his views.”

The most pointed exchange came near the end of the day as Schumer, holding up a copy of the Constitution, asked Alito repeatedly whether he believed it did not protect the right to an abortion. He argued that Alito’s judicial record suggested he would have little compunction about overturning previous rulings.

“Your blanket 1985 statement ... that the Constitution doesn’t protect the right to an abortion ... and your own record of reversing or ignoring precedent on the 3rd Circuit [Court of Appeals] lead to one inevitable conclusion: We can only conclude that if the question came before you, it is very likely that you would vote to overrule Roe v. Wade,” Schumer said.

Alito said his record as a judge had not been consistently antiabortion. He noted that he cast the deciding vote in a 2-1 ruling that struck down a Pennsylvania law and made it easier for low-income women to obtain free abortions if they were victims of rape or incest.

“If I had an agenda to uphold any regulation of abortion ... then I would have turned the decision the other way,” he said.

And Alito disputed -- at least in principle -- the Bush administration’s view of the sweep of presidential power during war.

News surfaced in December that more than four years ago Bush had authorized the National Security Agency to eavesdrop, without obtaining warrants, on people in the U.S. with known links to foreign terrorists. In a speech last month, Bush argued that he had the authority to issue such an order despite a 1978 law that prohibited the government from conducting electronic surveillance in this country without a warrant.

Can the president circumvent this law and bypass the courts? Leahy asked.

“The president has to comply with the 4th Amendment [which forbids unreasonable searches and seizures], and the president has to comply with the statutes that are passed,” Alito said. “No person in this country is above the law, and that includes the president.”

Asked whether he agreed with Justice Sandra Day O’Connor that the president did not have a “blank check” during wartime, Alito responded: “Absolutely.”

“That’s a very important principle,” he said. “Our Constitution applies in times of peace and war ... and it’s particularly important that we adhere to the Bill of Rights in times of war and in times of national crisis because that’s when there’s the greatest temptation to depart from them.”

Alito expressed regret for reneging on a pledge he made as a federal appellate judge to recuse himself from any case involving the Vanguard Group, a mutual fund company in which he has owned shares.

He offered that assurance during his 1990 confirmation hearing, but in 2002 he was part of a three-judge panel that ruled in favor of Vanguard in a legal dispute.

“If I had to do it over again, there are things that I would have done differently,” he said.

He said he did not believe he had violated “any ethical standard” by participating in the Vanguard case, but that he had breached his “own personal standard, which is to go beyond what the code of conduct for judges requires.”

After the judicial panel that included Alito ruled in favor of Vanguard, the investor who sued the company complained about Alito’s involvement in the case, and it was assigned to a new trio of judges. They also ruled in the company’s favor.

“I just didn’t focus on the issue of recusal,” Alito told senators, calling it an “oversight.”

Partly because of Alito’s longer, more openly conservative legal record, he has drawn more opposition from Democrats than did Roberts, who was confirmed in September, 78 to 22. But most congressional observers expect him to be approved, although by a narrow margin.

“I sense from the body language and the tone of the questions that there’s a growing sense of inevitability that he will, in fact, be voted favorably out of the committee and confirmed,” Sen. John Cornyn (R-Texas) said.

Some Democrats disagreed.

“We have a long way to go,” Schumer said. “We believe the burden of proof is on Judge Alito. This is not an anointment.”