Washington – Supreme Court nominee Samuel Alito said Tuesday that he would keep an “open mind” about a woman’s right to an abortion but refused to say whether he believed the Constitution provided the right to terminate a pregnancy.
Referencing an Alito memo written in 1985 saying that the Constitution does not provide the right to an abortion, Sen. Charles Schumer, D-N.Y., repeatedly asked Alito what he believed today about the same issue. Alito deflected the question repeatedly.
“I would need to know the case that is before me, and I would have to consider the arguments, and they might be different arguments from the arguments that were available in 1985,” Alito said.
The exchange was among the most contentious on the first day Alito answered senators’ questions. It came about eight hours after Alito told Sen. Arlen Specter, R-Pa., that his writings in 1985 reflected his feelings and role at the time, as a government lawyer in the Reagan administration. He then said that he respected court precedent.
Alito addressed a range of inquiries about abortion, whether the president should be allowed to authorize spying on Americans, how much power Congress should have and when the Supreme Court should overturn existing case law.
Alito remained calm throughout the day, sometimes answering the questions fully and in other cases saying he could not because the issue might come before the court.
Against the backdrop of revelations that President Bush authorized eavesdropping on Americans without court orders, senators asked questions about whether the president could violate existing law. Alito said the president is not above the law. But asked whether Bush’s spying is illegal, Alito said the issue likely would come before the Supreme Court, that many aspects would need to be examined and that he could not answer decisively.
The hearing bounced back and forth between Democrats grilling Alito on memos he has written and cases he has decided and Republicans guiding him through gentle questioning allowing him to state his position or reasoning more fully.
Sen. Patrick Leahy, D-Vt., questioned Alito about his membership in a Princeton University group that had already been criticized at the time Alito belonged for trying to keep women and racial minorities out of the school. Alito listed his membership in the group on a 1985 job application, saying he was “proud” to belong.
“I have racked my memory on this issue,” Alito said. “I really have no specific recollection of that affiliation. I put it down, so I must have been a member of that organization.”
Leahy responded somewhat scornfully, saying, “I can’t believe that at 35 when you’re applying for a job, you’re going to be anything less than careful putting together a job application.”
In questioning Alito on the same issue, Sen. Joseph Biden, D-Del., said he was living in Delaware at the time Alito attended Princeton and that “I was aware of (the group). It was a big deal.”
Republican Sen. Orrin Hatch of Utah then allowed Alito several minutes to say he was not a founding member of the Princeton group and that he was not a board member. “I don’t believe I did anything in this organization,” Alito said.
“Are you against women and minorities attending college?” Hatch then asked, prompting laughter from people in the chamber.
“Absolutely not, Senator,” Alito replied.
Outside the hearings, Republican Sen. John Cornyn of Texas said the hearings had “a growing sense of inevitability that he will, in fact, be voted favorably out of the committee and be confirmed.”
Democrats a few minutes later said Alito had not significantly answered questions and that the hearings were not “an anointment.”
But because the Senate has 55 Republicans and only 51 votes are needed for confirmation, Democrats would be forced to try to block a vote on Alito with a filibuster. That would be difficult given the existence of the Senate’s “Gang of 14” – seven Republicans and seven Democrats who united to protect the filibuster and said it could be used only in extraordinary circumstances. Colorado Sen. Ken Salazar, a Democrat, is part of the bipartisan group.
Another member of the Gang of 14 who is on the Judiciary Committee said he thought a filibuster was highly unlikely.
“Each individual senator within that group will make a decision about whether an extraordinary circumstance exists,” said Sen. Lindsey Graham, R-S.C.
Staff writer Anne C. Mulkern can be reached at 202-662-8907 or amulkern@denverpost.com.
