Alito pressed on precedent, privacy

Midway through Senate confirmation hearings, Supreme Court nominee Samuel Alito has deftly parried questions on hot-button issues ranging from abortion to the limits of presidential power.

No memorable phrases. No conspicuous stumbles. And - most important - no searing images of what life in "Judge Alito's America" might be like.

To the frustration of anti-Alito groups staking out front seats in the hearing room, Democrats have been slow to get traction on issues critical to their base.

"Too many senators allowed him to be evasive," says Nan Aron, founder of the Alliance for Justice and a leading activist in the 1987 defeat of the nomination of Judge Robert Bork. The anti-Bork campaign turned on a grim depiction of life for women, minorities, and the poor in "Judge Bork's America."

Many Republicans used their rounds of questioning to directly rebut issues raised by Democrats. Senate aides often distribute talking points to challenge a line of argument in real time, as it is being made in the Senate hearing room.

"He is saying as little as he needs to be confirmed and hasn't made many mistakes that trouble a majority of senators whose votes he needs," says Carl Tobias, a professor at the University of Richmond Law School.

But unlike Chief Justice John Roberts, Mr. Alito did not default to refusing to answer a question because "the issue is likely to come before the Court," he adds. "He has tried to wade in and engage the questions. The answers aren't always as specific as the senators would like, but he can't go too far, either. He'd have to recuse himself."

While many court watchers are predicting a party-line vote in the Senate Judiciary Committee, the 10 Republicans and eight Democrats say they are keeping an open mind.

The most divisive issue - on both sides of the aisle - is the constitutional status of abortion rights. Most Democrats and moderate Republicans, including Senate Judiciary Committee chairman Arlen Specter, support the principles of the 1973 Roe v. Wade decision. As he did in last year's Roberts hearings, Mr. Specter led off with questions on whether Roe v. Wade constituted a "super precedent," because it has been reaffirmed 38 times.

While agreeing that the Constitution protects a right to privacy - a point made by every nominee since Judge Bork - Alito did not agree that it was such settled law that its principles should not be reexamined. "I personally would not get into categorizing precedents as super precedents or 'super-duper' precedents (Specter's signature phrase)," he said.

In a deliberately balanced response, Alito said he agreed "with the underlying thought when a precedent is reaffirmed, that strengthens the precedent," but added that he didn't "want to leave the impressions that stare decisis [following precedent] is an inexorable command because the Supreme Court has said that it is not." He said he would approach the issue with an open mind.

In a signal of divisions within GOP ranks, Sen. Brownback (R) of Kansas, a prospective presidential candidate in 2008, cited all the precedents for the 1896 Plessy v. Ferguson case that legalized racial segregation, later reversed by the historic 1954 Brown v. Board of Education case outlawing segregated schools. But, aware that the issue could provoke a Democratic filibuster, he backed off pressing Alito for further response.

Senators also pressed Alito on the limits of executive powers, especially related to recent controversies over President Bush's authorization of domestic spying by the National Security Administration. He said that no president was above the law, but declined to say whether he thought that the White House exceeded its authority.

He also declined to say whether Bush abused executive powers by using presidential signing statements to override the intent of Congress. He said he would need to know the specifics of the case and go through the judicial process. In February 1986, Alito drafted a memo arguing that presidential signing statements should "assume their rightful place in the interpretation of legislation."

Democrats are also pressing Alito on issues of personal values and ethics.

In the closing rounds of questions, one of the most frequently cited documents is a 1985 job application to the Reagan Justice Department, in which Alito wrote: "I am particularly proud of my contribution in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."