Alito Appears Headed for Senate Confirmation

Times Staff Writers

Supreme Court nominee Samuel A. Alito Jr. sparred for the last time with Senate Democrats on Thursday, emerging from four days of sometimes tense, sometimes tedious confirmation hearings with few political wounds.

He appeared headed for confirmation by the full Senate, perhaps as soon as next week.

Members of the Senate Judiciary Committee appeared split along party lines when the hearings began Monday, and that seemed not to have changed by the time Alito left the witness chair. The panel’s 10 Republicans praised Alito, a federal appellate judge, for his experience and intellect; its eight Democrats expressed fears that he would tilt the high court to the right.

“We started these hearings seeking answers. We come away with even more questions about Judge Alito’s commitment to fairness and equal justice for all,” said Sen. Edward M. Kennedy (D-Mass.).


Republicans flatly rejected such arguments. “I am more and more convinced that he represents one of the best nominees we may have ever had for the court, at least in recent memory,” said Sen. Jeff Sessions (R-Ala.)."He has all the gifts and graces necessary to be a great judge.”

President Bush called Alito on Thursday to congratulate him on his performance, saying he “showed great class” under pressure, a White House spokesman told reporters.

The Judiciary Committee is scheduled to vote Tuesday on whether to recommend Alito for the high court. If Democrats do not ask for a delay, the full Senate could vote on his confirmation by week’s end.

Alito’s nomination is expected to be approved by a slim margin in the Republican-controlled chamber. Barring an unforeseen development, the only apparent way Democrats could block his confirmation would be with a filibuster -- which appeared unlikely after several senators said Thursday they were not inclined to support one.

Sen. John McCain (R-Ariz.), a leader of seven Republicans and seven Democrats known as the Gang of 14, who could make or break a filibuster, indicated he would back Alito.

“Judge Alito did a fine job,” McCain said, according to spokeswoman Eileen McMenamin.

Sens. Olympia J. Snowe (R-Maine) and Ben Nelson (D-Neb.) -- other Gang of 14 members -- issued similar statements.

Throughout his testimony, Alito proved to be an effective, if bland, witness for himself. His long paper trail, accumulated over 15 years on the U.S. 3rd Circuit Court of Appeals, generally helped rather than hurt him. When asked about one of his rulings or dissents, Alito was able to describe the facts and legal reasoning that led to his conclusions.


His responses helped defuse attacks on him.

Alito also pledged that as a justice, he would keep an “open mind” on controversial cases coming before the court, such as those dealing with abortion rights. But committee Democrats said he failed to ease their concerns that he was a conservative ideologue whose political views would color his rulings.

They complained, as Sen. Charles E. Schumer (D-N.Y.) said Thursday, that “he has given us a great deal of responses. He has given us very few answers.”

Republicans sought to counter the Democrats’ complaints.


“I disagree with the recent comment that you haven’t been forthcoming,” Sessions told Alito. “I would say that we have not had a witness more forthcoming, more willing to discuss the issues, than you have” been.

Questioned a total of 18 hours, Alito provided repeated assurances that he did not share the White House’s view that Bush, as commander in chief, had “inherent authority” to protect national security.

“The president and everybody else is bound by a statute,” Alito said Thursday in reply to a question by Sen. Dianne Feinstein (D-Calif.). “There’s no question about that whatsoever. And the president is explicitly given the obligation, under Article II [of the Constitution], to take care that the laws are faithfully executed.”

The issue assumed greater relevance after Bush’s acknowledgment last month that shortly after the Sept. 11 terrorist attacks, he had ordered the National Security Agency to secretly spy on Americans without first receiving a warrant. A 1978 law forbids electronic surveillance unless officials gain court permission.


Alito stopped short of saying Bush’s order was illegal, but he told Feinstein that “presidential power is at its lowest in this situation, where the president is claiming the authority to do something that Congress has prohibited.”

By contrast, despite many inquiries throughout the week, Alito revealed little about his views on abortion -- perhaps the most divisive issue facing the court -- and the Roe vs. Wade decision that legalized it nationwide.

While serving as a lawyer in the Justice Department during the Reagan administration, Alito wrote that he believed the “Constitution does not protect a right to abortion.” Under questioning, he said those words reflected a “true expression” of his views at the time, and he refused to disavow them.

He insisted, however, that he would be inclined to abide by precedent on the Supreme Court, and said Roe vs. Wade should not be reversed unless there was a “special justification” for doing so.


A few new topics arose Thursday, including whether the Constitution gives a patient the right to choose who should make his or her medical decisions if the individual becomes incapacitated.

“That is a right that people have had under our legal system for a long time -- to make that decision for themselves,” Alito said.

He also was asked whether a recent proposal by some lawmakers to deny citizenship to children born in this country but whose parents were illegal immigrants would be constitutional.

Schumer, building toward that question, asked Alito whether the Constitution was written so clearly on certain subjects that there was no room for misinterpretation. For instance, he asked, was it clear that a foreign-born citizen, such as California Gov. Arnold Schwarzenegger, was not eligible to be president?


“No one but a natural-born citizen can be the president of the United States,” Alito agreed.

Schumer pressed forward: “OK. Now, I want to ask you about the 14th Amendment, which sets forth the definition of citizenship. It states ... ‘All persons born or naturalized in the United States and subject to the jurisdiction therefore are citizens of the United States.’ Given the clear language, could Congress pass a statute, not a constitutional amendment, denying citizenship to a person born in the United States?”

Alito demurred.

“I know that there are proposals to do that. I know that it’s an issue that is in play. And if it were to come before me, then I would have to go through the whole judicial process,” the nominee said.


After Alito’s questioning wrapped up at midday, the committee heard testimony from other witnesses, including a panel of Alito’s fellow judges from the 3rd Circuit Court of Appeals, based in Philadelphia.

The judges testified that despite allegations from some Democrats and liberal interest groups, Alito’s legal rulings were not guided by his political opinions.

But Democrats continued to express concerns about Alito’s political leanings, including his apparent membership in a Princeton University alumni group whose founders openly opposed increasing the admissions of female and minority students to the school. Alito cited membership in the group in a 1985 job application for a promotion in the Justice Department.

The subject dominated much of Wednesday’s session, during which Alito said that he had no recollection “of having anything to do” with the group and that he strongly rejected the views expressed by its founders.


On Thursday, Judiciary Committee Chairman Arlen Specter (R-Pa.) announced that an overnight review of documents relating to the group, known as Concerned Alumni of Princeton, had not turned up Alito’s name.

But aides to committee Democrats said that the documents -- donated to the Library of Congress by one of the group’s founders -- did not include membership information or lists of supporters. As a result, the papers did not prove or disprove Alito’s participation in the group, they said.

Sen. Richard J. Durbin (D-Ill.) said the issue was important in determining whether Alito might be a closet ideologue, not because he might be a “closet bigot,” as Sen. Lindsey Graham (R-S.C.) had charged Wednesday was the rationale for the questions.

“It comes down to whether [Alito] comes to this with an agenda, with a set of political goals,” Durbin said. “It’s still unclear why [mention of the group] ever showed up on his resume.”


The final witnesses are scheduled to appear today before the hearings end.

Times staff writer Richard Simon contributed to this report.