Alito Tries to Defuse Doubts

Times Staff Writers

Judge Samuel A. Alito Jr., President Bush’s choice for a closely divided Supreme Court, began his Senate confirmation hearings Monday by attempting to assure skeptical Democrats that he is not an ideological conservative with an expansive view of the powers of the presidency.

But Democrats pointedly put him on notice that he would be questioned aggressively about his views, particularly on the right to abortion and the president’s claim to sweeping authority as commander in chief.

“There is nothing that is more important for our republic than the rule of law,” Alito said in his opening statement. “No person in this country, no matter how high or powerful, is above the law, and no person in this country is beneath the law.”

The scholarly appellate court judge appeared before the same Senate Judiciary Committee that four months ago recommended confirmation of John G. Roberts Jr. as chief justice, but it quickly became apparent that Alito’s hearings would be far more contentious.


The sense of partisan confrontation has been heightened by the controversy over Bush’s assertion of broad executive authority in the war on terrorism -- an interpretation of presidential power that Alito supported as a government lawyer.

“The challenge for Judge Alito in the course of these hearings is to demonstrate that he’s going to protect the rights and liberties of all Americans and, in doing that, serve as an effective check on government overreaching,” Sen. Patrick J. Leahy of Vermont said in the first of a series of stern statements directed toward the nominee by committee Democrats.

Alito’s 15 years on the U.S. 3rd Circuit Court of Appeals have provided considerable fodder for his critics, and the fact that he would replace Justice Sandra Day O’Connor, frequently the high court’s swing vote, has rallied liberal opposition.

“This is not just another nomination to the Supreme Court,” said Sen. Richard J. Durbin (D-Ill.). “This is the nomination that will tip the balance of the court one way or the other.”

Lawmakers from both parties have said that Alito remains likely to be confirmed by the Republican-dominated Senate, although by a far smaller margin than Roberts, as long as he makes no significant errors in the days of questioning, which begins this morning and is scheduled to continue through Wednesday. Roberts was confirmed 78 to 22.

Monday’s session was devoted to opening statements, both from the nominee and from the senators who will question him. After the committee’s 18 members had their say, Alito’s plain-spoken comments offered a low-key ending to the first day of hearings.

His voice quavering slightly, Alito painted a picture of his life and approach to the law in personal terms. With his wife, two children and extended family seated behind him, he described growing up during the 1950s outside Trenton, N.J., in a “warm, but definitely an unpretentious, down-to-earth community.”

After high school, Alito said, “I went a full 12 miles down the road, but really to a different world when I entered Princeton University.”


It was a world not entirely to his liking, said Alito, 55, who is widely described as conservative politically. The late 1960s and early 1970s were “a time of turmoil at colleges and universities,” he said, and “I saw some very smart people and very privileged people behaving irresponsibly.

“I couldn’t help making a contrast between some of the worst of what I saw on campus and the good sense and the decency of the people back in my own community,” he said. Alito graduated from Princeton in 1972 and Yale Law School in 1975.

During his confirmation hearings in September, Roberts used his opening statement to describe his legal philosophy, depicting himself as an umpire, not the star player of the game. The metaphor nicely captured his message that the Supreme Court should play a more modest role in American government. By contrast, Alito did not try to describe his legal views except to say that judges should have no agenda and should follow the rule of law.

“Good judges develop certain habits of mind,” Alito said. “Good judges are always open to the possibility of changing their minds based on the next brief that they read, or the next argument that’s made by an attorney who is appearing before them, or a comment that is made by a colleague during the conference” between judges.


He also signaled what is likely to be his defense of comments he made in memos while at the Justice Department in the 1980s, including one that the Roe vs. Wade decision legalizing abortion nationwide was “wrongly decided.”

At the time, he told the committee, he was an attorney representing the United States.

“When I became a judge, I stopped being a practicing attorney,” Alito said. “That was a big change in role. The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge can’t think that way. A judge can’t have any agenda.”

Pepperdine University law professor Douglas W. Kmiec, who served with Alito at the Justice Department, praised his friend’s opening statement as being plain but highly effective. There was “no rancor, nor rhetorical flourish. Very little of the Roberts’ charm offensive,” Kmiec said.


The contrast with Roberts as the “gold standard” could work against Alito, Kmiec said, “but there must be some level of achievement beyond gold because Alito, with complete sincerity and nervous confidence, exceeded it.”

But at least one Democrat said he was unmoved by Alito’s demeanor or assurances.

“Every nominee has used the same empty platitude -- they will follow the rule of law as a judge,” Sen. Charles E. Schumer of New York said after the hearing. “But even as a circuit court judge, Alito has frequently bent or ignored precedent to move in an ideological direction and will have far more freedom to do so on the Supreme Court. Therefore, Judge Alito’s assurances today provide scant comfort to those who want a mainstream judge -- and demand rigorous questions tomorrow.”

Committee members used their statements Monday to draw the lines of battle for that questioning, with Democrats demanding answers on core constitutional principles and Republicans insisting that Alito has the right to demur on any issue that could come before the court.


“There is, I think, a heavy sense of drama as these hearings begin,” said the panel’s chairman, Sen. Arlen Specter (R-Pa.). “This is the quintessential example of separation of powers under our constitutional process -- the president nominates, the Senate confirms or rejects, and the successful nominee ascends to the bench.”

In addition to the debate over abortion and privacy rights, the hearings are expected to be dominated by discussions over the extent of presidential power. Some senators believe that Bush has exceeded his authority by ordering domestic surveillance without judicial review and by authorizing harsh treatment of terrorism suspects that critics consider torture.

The White House has argued that congressional votes to authorize the use of force against Iraq and Afghanistan gave the president the authority to bypass special surveillance courts to order wiretaps on people in the United States. The issue is one of concern for Republicans as well as Democrats.

“I believe even during a time of war, the rule of law applies,” said Sen. Lindsey Graham (R-S.C.), who added that he had met with Alito recently to discuss the issue, and noted that he planned to question him on the subject. “I’ve got some problems with using a force resolution to the point that future presidents may not be able to get a force resolution from Congress if you interpret it too broadly.”


“Now, more than ever, we need a strong and independent judicial branch,” said Sen. Russell D. Feingold (D-Wis.). “We need judges who will stand up and tell the executive branch it is wrong when it ignores or distorts the laws passed by Congress.”

The atmosphere in the hearing room was serious but leavened by moments of gentle humor. One came when Alito mentioned the Senate staff members who had spent the last few months reviewing the hundreds of rulings from his years as an appellate court judge.

“I think that may have constituted cruel and unusual punishment,” he said, drawing chuckles from senators and the audience.

Times staff writer Richard Simon contributed to this report.




What they said

Here are excerpts from opening statements during the Senate Judiciary Committee hearings on the nomination of Judge Samuel A. Alito Jr. to be an associate justice on the Supreme Court:


Supreme Court nominee Judge Samuel A. Alito Jr.: “The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge can’t think that way. A judge can’t have any agenda, a judge can’t have any preferred outcome in any particular case and a judge certainly doesn’t have a client.

“The judge’s only obligation -- and it’s a solemn obligation -- is to the rule of law. And what that means is that in every single case, the judge has to do what the law requires.”

Committee Chairman Sen. Arlen Specter (R-Pa.): “Hearings for a Supreme Court nominee should not have a political tilt for either Republicans or Democrats. They should, in substantive fact and in perception, be for all Americans.”

Sen. John Cornyn (R-Texas): “Groups are trying to defeat your nomination because you will not support their liberal agenda. And the reason they oppose you is precisely why I support you. I want judges on the Supreme Court who will not use their position to impose a political agenda on the American people.”


Sen. Charles E. Schumer (D-N.Y.): “While every Supreme Court nominee has a great burden, yours, Judge Alito, is triply high. First, because you have been named to replace Justice Sandra Day O’Connor, the pivotal swing vote on a divided court; second, because you have been picked to placate the extreme right wing after the hasty withdrawal of Harriet Miers; and, finally, because your record of opinions and statements on a number of critical constitutional questions seems quite extreme.”

Sen. Charles E. Grassley (R-Iowa):

“Some liberal interest groups have come out in full force, and have attempted to paint Judge Alito to be an extremist and an activist.... I don’t like to see facts twisted or untruths fabricated to give the nominee a black eye, even before he sets foot in front of the Judiciary Committee. So, Judge Alito, now you have an opportunity to set everyone straight on your record and your approach to deciding cases.”

Sen. Dianne Feinstein (D-Calif.):


“I think it’s fair for us to try to determine whether your legal reasoning is within the mainstream of American legal thought and whether you’re going to follow the law regardless of your personal views about the law. And since you have provided personal and legal opinions in the past, I very much hope that you will be straightforward with us, share your thinking and share your legal reasoning.”

Sen. Joseph R. Biden Jr. (D-Del.):

“The Constitution provides for one democratic moment, judge, before a lifetime of judicial independence, when the people of the United States are entitled to know as much as we can about the person that we’re about to entrust with safeguarding our future and the future of our kids.... We -- you and I and this committee -- owe it to the American people in this one democratic moment to have a conversation about the issues that will affect their lives profoundly. They’re entitled to know what you think.”

Source: Associated Press