Abortion, Executive Power at Issue

Published January 10, 2006

| FoxNews.com

Supreme Court nominee Samuel Alito on Tuesday defended some of his more controversial statements on abortion and vowed to uphold the Constitution when adjudicating matters of presidential authority, even in times of war.

Alito also tried to convince Senate Judiciary Committee Democrats that he will inject personal conservative views into his opinions, particularly when it comes to hot-button topics, if chosen to replace the retiring Justice Sandra Day O'Connor.

• Click here to watch gave-to-gavel, streaming live video of day two of the Senate Judiciary Committee on FOXNews.com.

"I don't care what your position is on abortion, it's not about abortion. It's about your reasoning here," Sen. Joe Biden, D-Del., said during questioning on day two of the nominee's confirmation hearing.

"I don't think anybody thinks you are a man lacking in integrity. I don't think anybody thinks that you are a person who's not independent. I think that what people are wondering about and puzzled about is not whether you lack independence, but whether you independently conclude that the executive trumps the other two branches," Biden added.

Biden also said he could not remember a time when a judicial nominee had been so responsive; Alito answered more than 250 questions on Tuesday alone. Some Democrats had earlier threatened to filibuster Alito's nomination if he didn't fully answer questions posed to him during the confirmation process.

Sen. John Cornyn, R-Texas, said any senators looking to oppose Alito on that basis was just looking for a reason to defeat the nomination.

Alito: Precedent Important in Abortion Cases

As the first questioner, Committee Chairman Arlen Specter, R-Pa., asked whether Alito believes privacy is protected by the Constitution as it relates to the issue of abortion.

"Senator, I do believe the Constitution protects the right to privacy," Alito responded when Specter asked if the nominee accepts the principles of Griswold v. Connecticut, a case that established that medical contraception fell under the right to privacy and legalized birth control. Alito also said he believes that same protection is provided for single women.

"I agree that Griswold now is understood by the Supreme Court based on the liberty clauses of the due process clause of the Fifth Amendment and the 14th Amendment," Alito added.

The pro-choice Specter asked Alito if he believes the case of Planned Parenthood v. Casey — the 1992 Supreme Court decision that decided that government may not require that a husband be informed about an abortion — is an example of "super stare decisis."

"I personally would not get into categorizing precedents as 'super precedents' or 'super duper precedents,'" Alito responded. "It sort of reminds me of the size of laundry detergent in the supermarket."

But he added: "I agree with the underlying thought that when a precedent is reaffirmed, that strengthens the precedent … that is a factor that should be taken into account when making a decision about stare decisis," or the principle "to stand by what is decided."

Alito dissented in the Casey case when the 3rd U.S. Circuit Court of Appeals struck down the Pennsylvania spousal notification law. "I did it because that's what I thought the law required," he told the committee Tuesday.

Alito distanced himself from comments he wrote in 1985 in which he said he thought Roe v. Wade, the 1973 landmark abortion rights ruling, was unconstitutional. Alito said that as a judge, he would not be an advocate as he was when he was applying for a job with the Reagan Justice Department.

Click here to read Alito's 1985 statement on abortion (pdf).

Click here to read Alito's abortion-related opinions (pdf).

"That was a true expression of my views at the time," Alito said, adding that was applying for a job and supporting the goals of his client, President Reagan.

"A judge doesn't have a client, as I said yesterday, and a judge doesn't have an agenda and a judge has to follow the law, and an important part of the law in this area as we look at it in 2006 is the law of stare decisis," Alito said.

Later in the day, Alito told Sen. Dianne Feinstein, D-Calif., that based on case law, he agreed that a statute that restricts a women's access to an abortion that could protect the life and health of the mother is unconstitutional.

Feinstein, the only woman on the committee, asked Alito what sort of "special consideration" would be justification for overturning precedent established in Roe v. Wade.

"This is not a mathematical formula — it would be a lot easier if it were but it's not," Alito said, adding that the Supreme Court has said "the rule of stare decisis is not an inexorable command …it's a matter of weighing, taking into account all of the factors."

That answer didn't satisfy Feinstein. She said that in her private talks with Alito, the nominee assured her that Roe is the most tested ruling in the court to date, and she wanted specific examples of what may be cause for overruling it. Alito then said one example may be if it is proven to the Supreme Court that a law is unworkable in this day and age.

But Sen. Mike DeWine, R-Ohio, took exception to the notion that abortion precedent could not be overturned.

"To me, Roe is not super precedent. It's precedent but I don't believe it's super duper precedent or super precedent," he said, noting that while the Supreme Court has applied principles embodied in Roe v. Wade in 38 cases, in only four of those does the court address Roe statutes as binding precedent.

DeWine noted that Plessy v. Ferguson — which established the concept of "separate but equal" — was precedent for 60 years before it was overruled. He said the term "super precedent" is defined as a ruling so entrenched in the legal system that it's not questioned.

"Whatever the term 'super precedent' means, I do not think it describes Roe … it is precedent, nothing more," DeWine added.

Sen. Charles Schumer, D-N.Y., said it's "troubling" that Alito would not answer whether the Constitution protects the right to abortion the same way in which he agreed it protects the right to free speech.

Alito responded that whereas specific language in the Constitution discusses free speech, the issue of abortion has a particular interpretation since that word is nowhere in the Constitution.

Schumer also said that just because Alito has said he would take stare decisis into account when deciding cases, that doesn't mean he won't ever overrule precedent, including Roe v. Wade.

Alito again said stare decisis "would be the first issue I would consider if an issue like this came before me ... That's not a formality to me," but rather how judges should act.

"I don't agree that the Constitution always trumps stare decisis," Alito continued. "There would be no room for the doctrine of stare decisis in constitutional law if that were the case... It certainly can and I think that's a good thing, otherwise Plessy v. Ferguson would still be on the books."

In the second round of questioning on Wednesday, each senator will have 20 minutes and the rounds will reduce by five minutes per round until questions are finished. There are 10 Republicans and eight Democrats on the panel.

Alito supporters say the questions have as much to do with senators getting a platform to speak than in Alito's extensive writings, including 361 opinions authored on the 3rd Circuit Court. Biden's first question, for instance, lasted 11 minutes and 35 seconds.

White House spokesman Scott McClellan said Bush is "confident" the nominee will be confirmed and challenged the Democrats on laying out what the Republican National Committee is calling "falsehoods" claimed about Alito's record and integrity.

"That's why we said we hoped that it'll be a civil and dignified hearing. ... This should be an open and honest discussion of a nomination. It should not be based on dishonest attacks and misrepresentations," McClellan said.

Wiretaps and Torture in a Time of War

The presidential power issue took center stage Tuesday after recent news that President Bush authorized the National Security Agency to use wiretaps on people living in the United States who make or receive calls to or from known Al Qaeda terrorists outside of the country.

The committee's ranking Democrat, Sen. Patrick Leahy of Vermont, argued that a vital function of the Supreme Court is to ensure that government is kept from intruding on peoples' privacy and freedoms.

"I worry about this culture we're getting ... I want to make sure that the courts, the courts are going to say, 'we'll respect your privacy, we'll respect your Fourth Amendment rights," said Leahy said, who repeatedly tried to get Alito to ask if the president can circumvent the Foreign Intelligence Surveillance Act to conduct warrantless spying within the United States.

"The president has to comply with the Fifth Amendment and the president has to comply with the statutes that are passed," Alito responded, referring to the constitutional provision that guards against unreasonable search and seizures.

Alito added that this issue "very likely" will come before his federal court or the Supreme Court. He also said that someone has a right to sue if they are subject to surveillance that violates the Constitution.

In a 1984 memo, Alito suggested that then-Attorney General John Mitchell could be immune from lawsuits when acting to protect national security — even if it included illegal wiretapping of U.S. citizens. Asked if he believes now that an attorney general should be immune from civil liability, Alito said, "No, he would not. That was settled in that case."

Sen. Russ Feingold, D-Wis., asked Alito if anyone in the Bush administration, especially those who are working to defend Bush's handling of the wiretap issue, had coached Alito on how to answer those questions.

"I've been a judge for 15 years and I made up my own mind that whole time ... Nobody in the administration has briefed me on what the administration's position is on this issue." Alito said, adding that he has only been given guidance on the format of the hearings, not on substance. "It would be very inappropriate for them to tell me what to say and I wouldn't have been receptive to that advice and I did not receive that kind of advice."

Sen. Edward Kennedy, D-Mass., said he has "serious doubts" that Alito will ensure that a state of war is not a "blank check" for the president to do whatever he wants.

Kennedy said Alito's record shows that he has been "extremely deferential" to executive power, whether it be on behalf of law enforcement or attorneys general.

O'Connor wrote in 2004 that "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens."

"It's a very important principle," Alito said, ticking off several cases where he ruled against executive power. "Our Constitution applies in times of peace and in times of war. And it protects American citizens in all circumstances."

Leahy also questioned Alito about the so-called "Bybee memo," written by Justice Department lawyers three years ago and essentially concluded that in a time of war, the president can override laws outlawing aggressive interrogation techniques and can prevent people who engaged in such acts from being prosecuted.

In December, Congress passed and Bush signed a law banning some types of inhumane or degrading treatment. It included protections for CIA and other interrogators who follow orders that most would be expected to carry out.

"They seemed to say that the president could immunize people from prosecution if they violated our laws on torture," Leahy said.

"No person in this country is above the law, and that includes the president and that includes the Supreme Court," Alito said. "Everybody has to follow the law and that means the Constitution and the laws enacted under the Constitution of the United States."

But he also said that the issue of presidential power needs to be dealt with on a case-by-case basis.

"You'd be in what Justice [Robert] Jackson called the 'Twilight Zone,' where the president's power is at the lowest point. You have to look at the specific question," Alito said.

Sen. Lindsey Graham dogged Alito on whether non-American enemy combatants captured on the battlefield have a constitutional right, or a right established by precedent, to sue the U.S. government over their detention conditions or confinement.

Based on case law, "we don't let the people trying to kill us, sue us … is that a good summary of the law of armed conflict?" Graham asked.

Alito said he was unaware of any precedent giving those enemy combatants those rights but refused to respond directly to how he would rule or how he feels on issues regarding the term "war," since those issues may come before the court.

When asked if he considered himself a strict constructionist, he said: "If a strict constructionist is a judge that doesn't make stuff up, then I'm a strict constructionist."

Much of the discussion was centered on Alito's impact on the future direction of the high court, especially since Alito is replacing the swing-voting O'Connor.

Both Republicans and Democrats have chastised the judicial branch in recent years for partaking in what they call "activist" judging — where jurists go beyond what's allowed in the law and interpret the laws according to their own personal beliefs.

Sen. Jeff Sessions, R-Ala., said there is a "deep concern" among the GOP regarding judicial activism in that the "liberal social agenda" being pursued by the courts runs "contrary to the wishes of the American people."

"Millions of Americans believe the court is losing discipline, that it's not faithful to the Constitution," and is allowing social or political views to influence their decisions, Sessions said.

"[The court] should always be asking itself whether it is straying over its bounds … whether it is making policy judgments rather than interpreting the law and that has to be a constant process of reexamining on the part of judges and that's the role the judiciary should play," Alito responded. "It is not true in my view that the Supreme Court can do anything it wants. It has to follow the Constitution and it has to follow the laws."

Questioning 'Sins' of the Past

Leahy also questioned the nominee on his involvement with the Concerned Alumni of Princeton, a conservative group formed in 1972 to oppose Princeton University's decision to admit women and minorities. When trying to secure a position in the Office of Legal Counsel during the Reagan administration in 1985, Alito noted his CAP membership on his application.

Alito told Leahy he does not recall his involvement with the group and denied any sort of active involvement. Sen. Orrin Hatch, R-Ala., directly asked Alito if he was opposed to women and minorities attending college.

"Absolutely not, senator, no," Alito responded. "I had never attended a non-co-educational school until I went to Princeton and after I was there a short time I realized the benefits of attending a co-educational school."

Alito sat unflinching as senators laughed at that response.

Sen. Jon Kyl, R-Ariz., called the attacks against Alito on this issue "character assassination."

Alito was also questioned about Vanguard Group's mutual funds, of which he owned between $390,000 to $975,000 worth of shares at the time of his 2002 ruling in favor of the company. He had promised the Senate in 1990 when he was being confirmed as a judge for the 3rd Circuit Court of Appeals that he would disqualify himself from cases in which he may have a conflict of interest, including the Vanguard companies. He recused himself after the 2002 ruling.

In the past, the administration has defended his participation in the case, saying a a computer glitch failed to pick up the notice to recuse himself.

Alito told senators that even though he was not legally required to remove himself, he did so ''to avoid any possible question."

"If I had to do it again, I might have handled it differently," Alito said. But "nobody has claimed that I had anything to gain financially from participating in this case and certainly I did not."

Sen. Charles Grassley, R-Iowa, noted that the American Bar Association has found that nothing in Alito's record should question his integrity. He said radical left-wing groups and trying to "torpedo" and "tar" Alito's nomination and reputation by making judgments that are "patently unfair."

"It's outlandish and should be rejected," Grassley said.

Without naming names, Feingold shot back at Grassley and other lawmakers who suggested that Democrats' questioning of issues such as ethics was merely an effort to give the nominee a black eye.

"I think this is our job," Feingold said.

On another topic, Alito defended his 2004 dissent in which he supported the strip search of a 10-year-old girl, explaining that his interpretation was based on "common sense" that a warrant included searches of anyone on the premises of a drug suspect.

"I wasn't happy that a 10-year-old was searched," Alito said, adding that the search was not carried out in an abusive way. But if there was a law saying warrants could not be applied to minors, Alito said: "If we had a rule like that, where would drug dealers hide their drugs? That would lead to more abuse of minors."

Despite some Democrats' claims that Alito has never ruled in favor of a plaintiff in a discrimination case, Kyl ran through several age, disability, gender and race discrimination cases in which he has in fact ruled that way.

"The bottom line is, there are numerous cases you have ruled in favor of minorities, African-Americans … to support the claim of discrimination and it would be inaccurate to say you have not taken that position in the 4,000 plus cases you've decided," Kyl said.

Sen. Herbert Kohl, D-Wis., questioned why Alito, while a judge on the 3rd Circuit, ruled against the ability of a state employee to sue an employer for violation of the Family and Medical Leave Act of 1993.

"We're concerned that your view shows a lack of understanding of ordinary working Americans and the right of women to be free of discrimination in the workplace," Kohl said.

Alito responded that two different provisions of the FMLA were taken up by the courts — one for people taking care of themselves and one for people taking care of family members. He said that while controversial, the standard he and the rest of the court followed was one established by the Supreme Court that allowed women more time than men when it came to caring for family members, but not for themselves.

"The provision that was at issue in Chittister had to do with leave for one's own personal illness. And a man was objecting to this. And there was no record that state employers, or for that matter any other employers, had plans that provided more sick leave for men than for women or that any stereotypes were involved in the situation," he said.

FOXNews.com's Sharon Kehnemui Liss contributed to this report.

URL

http://www.foxnews.com/story/2006/01/10/abortion-executive-power-at-issue