“That was the position I held at the time, that was the position of the [Reagan] administration,” Alito told committee Chairman Arlen Specter, the Republican from Pennsylvania who led off the questioning.
Pressed by New York Democrat Sen. Charles Schumer, the next-to-last questioner of the day, about whether he still held that view, Alito demurred.
“Does the Constitution protect the right to free speech?” Schumer asked.
“Certainly it does,” Alito answered.
“Then why can’t you ask whether the Constitution protects the right to an abortion in the same way?” Schumer asked. “Your refusal I find troubling.”
Alito, 55, who has sat on the U.S. Court of Appeals for the 3rd Circuit for the past 15 years, was nominated Oct. 31, 2005, to replace retiring Justice Sandra Day O’Connor.
The hearings Tuesday lacked much of the spark and crackle generated four months ago during the confirmation of Chief Justice John Roberts Jr., whose poised performance set a high bar for Alito to clear. Alito spoke calmly and earnestly, in a somewhat reedy voice, but by the end of the nine-and-a-half-hour session, he looked decidedly tired as did several of the committee members.
“The chairman was disturbed by my snoring over here,” cracked the committee’s ranking Democrat, Sen. Patrick Leahy (Vt.), as the hearings neared their conclusion.
Democrats questioned Alito on several of his most controversial decisions he has written more than 350 opinions and taken part in nearly 5,000 votes and asked for his views on issues such as the scope of executive power, the proper role of the courts, and the value of stare decisis in Supreme Court deliberations.
“I don’t want to state that stare decisis is an inexorable command, because the Supreme Court has said that it is not,” Alito told Specter. He said if he had to rule on Roe v. Wade, “the first question would be the question we’ve been discussing: the question of stare decisis. If the analysis went beyond that, I would approach it with an open mind.”
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Pressed on the issue by Schumer at the end of the day, Alito said that at times stare decisis could be controlling on a case even if a straight constitutional analysis arrived at an opposite result.
“I don’t agree with the theory that the Constitution always trumps stare decisis,” Alito told Schumer.
“But, sir, it can trump stare decisis,” Schumer said.
Responded Alito: “It certainly can, and I think that’s a good thing because otherwise Plessy v. Ferguson would still be on the books.”
Republicans, by and large, were content to lob softball questions to Alito.
“Are you against women and minorities attending college?” asked Utah’s Sen. Orrin Hatch, the committee’s former chairman. The question referred to Alito’s membership in Concerned Alumni of Princeton, a group that at one time opposed policies designed to increase the enrollment of minorities and women at the university.
“Absolutely not,” Alito said.
“I felt that would be your answer,” said Hatch.
Alito returned frequently to one broad theme that has emerged since he was nominated: that he would interpret the law, 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, led by Leahy, were far more strident in their questioning. Among several issues, Leahy focused on the intersection of executive and congressional power.
“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 by the Foreign Intelligence Security Act.
“I’d have to know the specifics,” Alito replied.
Leahy tried again.
“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.”
Leahy also questioned Alito closely about his membership in the Concerned Alumni of Princeton (CAP), an organization that he specifically noted his membership in on his 1985 application for a job at the Justice Department’s Office of Legal Counsel.
“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.” Alito added that he believed he’d signed up for the group because CAP opposed the school’s expulsion of the ROTC program in which he had participated as a student at the school.
“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.”
South Carolina Republican Lindsey Graham, who was the 13th senator to question Alito on Tuesday, noted the similarity of many senators’ remarks: “I guess there’s no rule against beating a dead horse, so I’ll spend the next 30 minutes asking the same questions everyone else has.”
In fact, many of the senators spent far more time making statements than asking questions. According to figures compiled by Specter’s office, Specter spoke for more than 17 minutes of his allotted half-hour; Democratic Sen. Joseph Biden of Delaware spoke for 24 minutes, leaving Alito just six minutes to answer. The least verbose was Arizona Republican Sen. Jon Kyl, who talked for just 12 minutes of his allotted half-hour.
By the time Schumer began his interrogation, after 6 p.m., all but one of the other Democratic senators had departed, but seven of the Republicans remained.
T.R. Goldman can be contacted at [email protected].