It was the first time since he was nominated that Alito had a chance to address his critics directly. Monday’s opening day consisted entirely of 10-minute statements by each of the Judiciary Committee’s 18 members 10 Republicans and eight Democrats and a prepared statement by Alito.
By early Tuesday afternoon, however, Alito had fielded questions about a host of contentious subjects, including executive power, the Fourth Amendment, abortion, and his membership in a controversial Princeton University alumni group that favored admissions restrictions for women and blacks.
Alito, 55, has been a judge on the U.S. Court of Appeals for the 3rd Circuit for the past 15 years and has written more than 350 opinions, several of which were at issue today.
Maintaining a steady and somewhat reedy tone, Alito sat calmly through questioning by Specter and the committee’s three most senior Democrats: ranking member Patrick Leahy (Vt.), Edward Kennedy (Mass.), and Joseph Biden (Del.).
Biden in particular delivered a long and rambling discourse in his allotted half-hour, leaving Alito only a few minutes in which to respond.
As they did during the nomination hearings for Chief Justice John Roberts Jr. last fall, Republicans on the panel lobbed softball questions at Alito for the most part. For example, Utah’s Sen. Orrin Hatch, the committee’s former chairman, asked Alito if he was “against women and minorities attending college.”
“Absolutely not,” Alito said.
“I felt that would be your answer,” Hatch responded.
Alito returned frequently to the one broad theme that has emerged since he was nominated to replace Justice Sandra Day O’Connor last October namely, that he would interpret the laws, not legislate from the bench.
“Although the judiciary has a very important role to play, it’s a limited role,” Alito told Hatch. The judiciary, said Alito, “should always be asking itself whether it’s straying over the bounds, making policy judgments, rather than interpreting the law.”
Democrats, starting with Leahy, were far more strident in their questioning. Among several issues that Leahy focused on was the intersection of executive and congressional power.
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“Could there be a position where the president could ignore the law and authorize others to ignore the law?” Leahy asked, referring to news reports that President George W. Bush had authorized the National Security Agency to intercept electronic communications without first seeking a warrant, as required under the Foreign Intelligence Surveillance Act. “I’d have to know the specifics,” Alito replied. Leahy kept pressing.
“Do you believe the president can circumvent FISA law to spy on Americans?” he asked.
Responded Alito: “The president has to comply with the Fourth Amendment, and the president has to comply with the statutes that are passed.”
Alito also dealt with questions about his membership in the Concerned Alumni of Princeton, which he specifically mentioned in a 1985 application for a job with the Justice Department’s Office of Legal Counsel. The group has been widely criticized, since it was founded to oppose policies admitting more women and minorities into Princeton.
“Why in heaven’s name, Judge, with your [Italian-American] background, why in heaven’s name were you proud of being part of the CAP?” asked Leahy.
Alito said he had no specific memory of being a member. But, he added, “since I put it down, I must have been a member.
“I have racked my memory on this specific issue,” he said, adding that he believed he’d signed up for the group, because at one point, Princeton had expelled the ROTC program that Alito had been a member of a policy the group must have opposed.
“The attitude was that the military was a bad institution and that Princeton was too good for that institution,” said Alito. “That was the issue that bothered me.”
In a brief news conference after the morning session ended, New York Democrat Sen. Charles Schumer said he’d gotten very little out of the hearings so far. “He’s talked in very broad generalities,” said Schumer. “Of course, he will keep an open mind on the issue,” he said, referring to earlier comments Alito made about Roe v. Wade. “We haven’t ever had a nominee ever say he’d have a closed mind.”
T.R. Goldman can be contacted at [email protected].