Alito's longer paper trail gives senators much material for questions

By Patricia Zapor
Catholic News Service
WASHINGTON (CNS) -- As the second Supreme Court nominee in five months faced the Senate Judiciary Committee in early January, Judge Samuel Alito Jr. encountered a hearing markedly more skeptical in tone than the one now-Chief Justice John Roberts sailed through in September.

Contributing to the difference were Alito's lengthier record of judicial opinions and a perception -- described by several Democratic members of the committee -- that Alito would be more judicially conservative than Justice Sandra Day O'Connor, whom he would replace.

One key area on which committee members focused in opening remarks and early questioning was Alito's writings on abortion, including his 1985 application to become deputy assistant attorney general, in which he said he personally strongly believed in the government's position that "the Constitution does not protect a right to an abortion."

The Senate hearing room was packed with more than 100 reporters, many of whom worked on laptop computers while they listened to the proceedings. The sea of dark business suits in the public area was dotted here and there with red stickers espousing "No on Alito" or "Confirm Alito."

Committee chairman Sen. Arlen Specter, R-Pa., opened the first day of questioning Jan. 10 by asking Alito his opinion of Supreme Court rulings which found that the constitutional right to privacy covered a right for people to use contraception without government interference and to have abortions.

Alito responded to Specter's questions about specifics of the rulings by saying that legal precedent holds great importance.

"There needs to be a special justification for overruling a prior precedent," he said. Specter did not press Alito as to what special justification there might be for overturning Roe v. Wade, the 1973 ruling that legalized abortion. Democratic senators were expected to focus more on Alito's views on Roe in later rounds of questioning.

Sen. Edward M. Kennedy, D-Mass., questioned Alito's views on executive power.

"Your record shows that, even over the strong objections of other federal judges, you bend over backwards to find even the most aggressive exercise of executive power reasonable. But perhaps most disturbing is the almost total disregard in your record for the impact of these abuses of power on the rights and liberties of individual Americans."

Several Republican committee members used their initial half-hour question periods to counter criticism of Alito by their Democratic colleagues, followed by gentle questions for the nominee, such as one asked by Sen. Charles Grassley, R-Iowa: "Do you believe the president of the United States is above the law and the Constitution?"

"Nobody is above the law and the Constitution," Alito responded.

"It should be clear to everyone that these are just a blatant smear tactic to tar Judge Alito's honorable and distinguished judicial record," Grassley said. "These outlandish criticisms are plain dirty and dishonest and should be rejected."

In his opening remarks Jan. 9, Alito said that "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's appearing before them, or a comment that is made by a colleague during a conference on the case."

The first day of the hearings was devoted to introductions and the opening comments of senators and Alito. Questioning by senators began Jan. 10; other witnesses were scheduled to speak later in the week.

Meanwhile, much as they had with Roberts, groups with a wide range of interests papered the hearing room and flooded e-mail accounts with releases decrying or lauding aspects of Alito's professional record.

People for the American Way provided half a dozen press releases arguing that Alito would overturn Roe v. Wade, as well as roll back laws protecting the environment and civil rights, and that he would support expanding government authority to bypass civil liberties.

The days leading up to the hearing were filled with press conferences and media events, such as the well-publicized prayer service in which members of the National Clergy Council said they were consecrating the Senate hearing room to ask that God's will "be done in all that is said by the senators and Judge Alito. We are praying that both parties be faithful to the Constitution, honest in their exchange and devoted to the truth," said the group's press release.

Despite the efforts to scrutinize and criticize Alito's rulings and personal views, it seemed likely that the Senate ultimately would confirm him. He could be sworn in as soon as late January.

Alito, 55, would be the fifth Catholic on the current court, the first time Catholics would constitute a majority there. The other Catholics are Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas.

Alito's confirmation would allow O'Connor to finally step down, seven months after she announced her plan to leave as soon as her replacement was seated. Roberts was originally nominated to replace her, but when Chief Justice William Rehnquist died early in September, President George W. Bush asked O'Connor to stay on and made Roberts his nominee for chief.

As the Supreme Court term opened and Roberts took the helm early in October, Bush nominated White House counsel Harriet Miers for O'Connor's still-vacant seat. Her nomination was roundly criticized by some of Bush's strongest allies. She withdrew her name in late October and Alito's nomination followed a few days later.

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