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Alito Faces First Full Day of Senate Questioning


From NPR News, this is ALL THINGS CONSIDERED. I'm Michele Norris.


And I'm Robert Siegel.

His seat got quite a lot hotter today. Supreme Court nominee Samuel Alito faced his first day of questioning from the Senate Judiciary Committee, and as expected, senators asked him about issues including abortion and presidential power. Analysis of the day's testimony is coming up, but first here, though, is NPR's legal affairs correspondent Nina Totenberg.


Alito had the unenviable task today of coming just four months after John Roberts who, as one Democrat put it, `retired the trophy' for a performance before the Judiciary Committee. And while the 55-year-old judge from New Jersey may not have shown the star power that John Roberts did, Alito spent a workmanlike day ultimately dodging, weaving and providing knowledgeable answers to the senators' questions. Committee Chairman Arlen Specter opened the hearing, focusing on abortion and the letter Alito wrote in 1985 when he applied for a high-ranking policy job in the Reagan Justice Department. In that letter, Alito said he was extremely proud of his role in the Reagan administration's trying to reverse the Supreme Court's abortion decision Roe vs. Wade, and he said flatly that in his view the Constitution does not protect a woman's right to an abortion. Senator Specter posed the question.

Senator ARLEN SPECTER (Republican, Pennsylvania): Do you agree with that statement today, Judge Alito?

Judge SAMUEL ALITO (Supreme Court Nominee): Well, that was a correct statement of what I thought in 1985 from my vantage point in 1985. Today, if the issue were to come before me, if I am fortunate enough to be confirmed and the issue were to come before me, the first question would be the question that we've been discussing and that's the issue of stare decisis. And if the analysis were to get beyond that point, then I would have to--I would approach the question with an open mind and I would listen to the arguments that were made.

Sen. SPECTER: So you would approach it with an open mind, notwithstanding your 1985 statement?

Judge ALITO: Absolutely, Senator.

TOTENBERG: In short, said Alito, he's a believer in stare decisis, the doctrine of deferring to the court's precedents in many cases even when he would not have originally agreed with the decision.

Judge ALITO: And the presumption is that the court will follow its prior precedents. There needs to be a special justification for overruling a prior precedent.

TOTENBERG: Senator Specter noted that Roe has been reaffirmed not once, not twice but some 38 times in the last 32 years, to which Alito responded...

Judge ALITO: I think that when a precedent is reaffirmed, each time it's reaffirmed, that is a factor that should be taken into account in making the judgment about stare decisis. Now I don't want to leave the impression that stare decisis is an inexorable command because the Supreme Court has said that it is not.

TOTENBERG: Bottom line? Alito said he thought 20 years ago Roe had been wrongly decided, that a precedent often reaffirmed is deserving of respect, but he made no commitments. Senator Specter and other senators asked a lot of questions about the limits on presidential power. Specter concluded with a series of questions focused on a memo Alito wrote in the Reagan administration, suggesting that when a president signs into a law a bill passed by Congress, the president may in essence reinterpret the law with a statement he issues at the time he signs it. Senator Specter said he did not think such signing statements have any meaning under the Constitution, that the president can only sign or veto the law. Judge Alito was non-committal, and Democrat Patrick Leahy picked up that thread.

Senator PATRICK LEAHY (Democrat, Vermont): In the last few weeks, we've seen well played out in the press where the president and Senator John McCain negotiated rather publicly an amendment which passed overwhelmingly in the House and in the Senate outlawing the use of torture by United States officers. Now if the president in his signing statement implies it will not apply to him or to those under his command as commander in chief, doesn't that get well beyond a theoretical issue there?

Judge ALITO: It is, and I think I said in answering the chairman that there are theoretical issues, but they have considerable practical importance. But the theoretical issues really have to be explored and resolved. I don't believe the Supreme Court has done that up to this point.

TOTENBERG: Leahy went on to note that the Bush administration for three years operated under a secret legal opinion it produced that allowed officials to engage in conduct previously deemed to be torture even though laws on the books banned such conduct.

Sen. LEAHY: What is your view of the legal contention that memo that the president can override the laws and immunize illegal conduct?

Judge ALITO: Well, I think the first thing that has to be said is what I said yesterday and that is that no person in this country is above the law.

Sen. LEAHY: Do you believe the president has the constitutional authority as commander in chief to override laws enacted by Congress and immunize people under his command from prosecutions that they violate these laws passed by Congress?

Judge ALITO: I think you'd have to look at the specifics of the situation. These are the gravest sort of constitutional questions that come up.

TOTENBERG: Senator Leahy pressed for an answer.

Sen. LEAHY: Let's make an easy one. We pass a law saying, `It's against the law to murder somebody here in the United States.' Could the president authorize somebody either from an intelligence agency or elsewhere to go out and murder somebody and escape prosecution or immunize the person from prosecution absent a presidential pardon?

Judge ALITO: Neither the president nor anybody else, I think, can authorize someone to--can override a statute that is constitutional.

Sen. LEAHY: Wouldn't it be constitutional for the Congress to outlaw Americans from using torture?

Judge ALITO: As to specific issues that might come up, I really need to know the specifics.


Judge ALITO: I need to know what was done and why it was done and here are the arguments on the issue.

Sen. LEAHY: Well, let's...

TOTENBERG: Leahy then moved on to another subject that Alito critics have suggested raises a so-called credibility issue. In 1985 in his Reagan administration job application, Alito, then 35 and obviously brandishing his conservative credentials, bragged about the fact that he was a member of a group called Concerned Alumni of Princeton. The group, which complained loudly about the admission of women and increased numbers of minorities at Princeton, was roundly condemned at the time by Princeton alumni as diverse as Bill Frist, now Senate Republican leader, and former Democratic Senator Bill Bradley. Senator Leahy.

Sen. LEAHY: Why in heaven's name were you proud of being part of CAP?

Judge ALITO: Well, Senator, I have racked my memory about this issue, and I really have no specific recollection of that organization. But since I put it down on that statement, then I certainly must have been a member at that time.

TOTENBERG: Alito also faced questions today about his failure to recuse himself three years ago in a case involving Vanguard mutual funds at a time when more than half his private investments were in those funds. When the plaintiff in a case filed an ethics complaint over the matter, Alito quickly recused himself, though he said in a letter that the judicial canons of ethics did not require such a recusal, but as Senator Edward Kennedy pointed out today, Alito had promised at the time of his Senate confirmation to the appeals court in 1990, he pledged that he would not participate in any Vanguard case. Although Alito in previous months has offered a variety of explanations, today, he in essence said it was a screw-up.

Judge ALITO: I just didn't focus on the issue of recusal when it came up, and that was an oversight on my part 'cause it didn't give me the opportunity to apply my personal policy of going beyond what the code requires. And one of the reasons why judges tend to invest in mutual funds is because they generally don't present recusal problems. And so no light went off.

TOTENBERG: The hearings continue tomorrow. Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.
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