Supreme Court nominee Samuel Alito continued his third day of his confirmation hearing Wednesday, sitting silently at times as some Senate Judiciary Committee members squabbled with each other.
The second day of questioning appeared to devolve into a back and forth about seeming discourtesies among lawmakers, and others expressed little appreciation for outsiders trying to influence the outcome of the confirmation.
After two days of accusations about the judge's relationship to a Princeton alumni group whose founder reportedly had written racist and elitist comments in the group's magazine, Martha Alito, the nominee's wife who has been sitting steadfastly behind her husband for the last three days, broke into tears.
The crying gave way about six hours into the questioning. It was set off not by a critic, but by Sen. Lindsey Graham, R-S.C., who apologized to the nominee for having to listen to what he says are baseless accusations and linkages.
"Let me tell you, this guilt by association is going to drive good men and women away from trying to sit where you're sitting. ... Judge Alito, I am sorry you've had to go through this. I am sorry that you're family has had to listen to this," Graham said.
Earlier in the day, Sen. Orrin Hatch, R-Utah, assailed left-wing interest groups who have taken to the airwaves and Internet to blast Alito on every issue they can, often distorting his views on topics in an effort to torpedo his nomination.
Outside the hearing room, Vice President Dick Cheney also accused liberal groups of trying to undermine the nomination.
"What I see happening now, unfortunately, is some of the groups on the other side trying hard to find some way to shoot him down. And so far I don't think they've been successful at doing that," Cheney told FOX News Radio's "Tony Snow Show."
Because he's a judge and not a politician, Hatch said Alito often doesn't have a chance to fire back at those critics, so he gave him the chance to respond to suggestions he's biased against entire categories of litigants.
"I reject that," Alito said. "I believe very strongly in treating everybody that comes before me very equally. I take that oath very seriously and I've tried my very best to abide by that during my 15 years on the bench. I don't think a judge should keep a scorecard ... but I think if anybody looks at the cases I've voted on … they will see that there are decisions on both sides."
Democrats voiced concern about what they consider to be inconsistencies with Alito's answers, particularly on the issues of the investment company Vanguard, in which he owns six-figure investments. Alito promised the Judiciary Committee at his 1990 confirmation hearing as an appellate judge that he would remove himself from cases involving the company but he didn't until over 12 years and one decision in favor of the company later.
Alito has said his participation in the 2002 Vanguard case was an oversight but both he and the American Bar Association have said he didn't do anything wrong nor did he gain anything from his participation.
Hatch blasted as "offensive" attempts to blow the Vanguard issue "out of proportion" and, without using names, criticized Tuesday attempts by Sen. Russ Feingold, D-Wis., to get Alito to say whether he had been programming on how to answer questions by the Bush administration.
"Sometimes I just can't make sense out of what some of your critics are saying — on the one hand, they want to portray you as some kind of robotic patsy for the government who doesn't think for himself," Hatch said. "On the other hand, your critics then turn around and attack you for dissenting too much, as if you should top all that thinking for yourself and just fall in line with the majority on your cases."
Sen. Charles Schumer, who was one of several senators who repeatedly questioned Alito on his membership in the Concerned Alumni of Princeton, said he thinks the questions have been fair, particularly since Alito is up for a position on the highest court of the land.
"You have to ask the questions that have to be asked because remember, it's a lifetime appointment, someone who has enormous, enormous power. This is the only shot where you get to see who they are, what their judicial philosophy is. They have an obligation to answer," the New York Democrat told FOX News. "It doesn't mean you jump to conclusions but it's why you ask the questions and you explore them."
Name Game Scuffles
The excitement of the day came when Sen. Edward Kennedy, D-Mass., said he wants the committee vote on issuing a subpoena to the Library of Congress for papers written by the founder of the Concerned Alumni of Princeton, William Rusher, a former publisher of the National Review. Rusher is said to have written racist and elitist stories for the CAP magazine, called Prospect.
Alito claims he does not recall his involvement in the CAP, a conservative group formed in 1972 to, in part, challenge Princeton University's decision to admit women and minorities and protest the school's treatment of the ROTC program. He also said he "deplores" the Prospect articles that exude racist or elitest sentiment.
"I have to say, Judge Alito's explanations about his membership in this seemingly radical group … are troubling and I don't think they add up," said Kennedy, D-Mass., who said he sent a letter to Committee Chairman Arlen Specter, R-Pa., on the topic but Specter said he never got it.
Kennedy insisted the chairman did receive the letter and that's when the fireworks started.
"You are not in a position to say what I received," Specter fired back. "I take umbrage at you telling me what I received."
"I am in a position to know what I sent ... if you're going to rule it out of order, I want to have a vote on that in the committee" about going into executive session, Kennedy responded.
Specter said since this is the first he's heard about any subpoena, he will consider it in "due course." Kennedy threatened to call for votes on the subpoena.
"Senator Kennedy, I'm not concerned about your threat to have votes again, again and again," Specter said. "I'm the chairman of this committee ... I will not have you run this committee and decide when we're going to go into executive session."
Specter aides later turned over to the chairman the letter Kennedy sent on Dec. 22, asking that a subpoena be ordered. Kennedy wanted the letter and responses by his and Specter's staff all submitted for the record.
After a brief break, Specter said he had a discussion with his chief of the staff around Christmas about the letter — which he didn't actually see until Wednesday — but it wasn't considered that serious since Kennedy never personally mentioned it to either him or Leahy. Specter said he and Kennedy are often in the Senate gym together and Kennedy never approached him about it.
Had Kennedy done so, Specter said, he could have learned that efforts are ongoing to read such papers, which are not open for public reading according to the rules of the gift given to the Library of Congress.
"We talk all the time and I'm just a little surprised Senator Kennedy didn't talk to Senator Leahy and didn't talk to me before he asked for access to the Rush records … I'm just a little bit puzzled but the substantive matters are being tended to," Specter said.
Kennedy responded by saying: "I regret I haven't been down to the gym since Christmas, I've missed you down there … the important part is, we're going to have access to that information." He added that had Alito been more responsive in his answers, he wouldn't have asked for the subpoena in the first place.
Democrats kept at Alito on the CAP issue, asking why he would ever pick CAP to put on his 1985 job application for a position in the Reagan administration; it was not on a job application he filled out in 1990.
"Why that group? With its tawdry history then, with all fairness, you said you didn't know about it. Why that group did you decide to put that on your application?" Schumer asked. "I think there are unanswered questions here that really we have an obligation to answer."
In a separate dust-up, Sen. Tom Coburn, R-Okla., early in the day said that for 45 years, Sen. Dick Durbin, D-Ill., who was not in the room at the time, was considered anti-abortion but since 1989, he's now an abortion supporter.
Other lawmakers this week have criticized their colleagues for different lines of questioning of the nominee but rarely have used specific names.
"I think it's important that the American people — that if he [Durbin] has the ability to change his mind on something he wrote in 1989, certainly you have the ability to say something was inaptly put," Coburn said. "I think it's important that people recognize people can change their mind."
Alito has distanced himself from comments he wrote in 1985 in which he said he thought Roe v. Wade was unconstitutional, saying he was applying for a job and supporting the goals of his client, President Reagan.
"There are other members on the other side that are adamantly pro-abortion, pro-the destruction of human life today, that have changed their mind, changed their position," Coburn continued. "So it's hard to be critical of you" for something written in 1985, "when many of us have backtracked on things that we've said through the years."
Durbin later asked to respond to Coburn's comments, and got backing from Sen. Patrick Leahy of Vermont, the ranking Democrat.
"Senator Coburn is a new — he's a valued member of the committee, of course, but new, and I wanted — but I really think — I've been here for 30 years. I've always made it a point, if I wanted to raise something, to give word to the other party," Leahy said. "I would urge senators, if we're going to start quoting each other, that maybe we have a quote time or something like that. Senator Durbin's absolutely right in wanting to be able to respond to what was said."
Later when Coburn was in the room, Durbin said his position did change, pointing out that he won re-election 12 times on the stance of being pro-choice.
"Abraham Lincoln was once accused of changing his position on an issue and he said, I'd rather be right some of the time than wrong all of the time," Durbin said, adding he doesn't think there is anything wrong with changing one's mind.
A Little Attention on Alito
At the top of the hearing, Leahy told Alito that, "a number of us have been troubled by what we see as inconsistencies in some of the answers," regarding issues like reapportionment — or "one person, one vote" — Alito's recusal from the Vanguard case, the "unitary theory of government," his involvement in CAP and others.
"I know many have announced up here exactly how they're going to vote before they even asked questions. I'm one of the one I make up my mind after asking the questions, so there will be a number more," Leahy said.
Feingold, who on Tuesday wanted assurances from Alito that no one from the Bush administration prodded him on how to answer questions, particularly in connection to wiretapping, said he wants a list on Thursday of all people who participated in Alito's confirmation hearing practice sessions.
Durbin said he's concerned about the "crushing hand of fate" Alito may wield if confirmed to the high court to replace retiring Associate Justice Sandra Day O'Connor, whether it be on issues relating to discrimination, sexual harassment or abortion. Others, like Kennedy, have voiced concern as well that Alito's record does not show enough deference toward the those not on the side of the executive.
Coburn submitted a list of at least nine cases where Alito has ruled for "the little guy," saying he believes the nominee has been unfairly characterized as not caring about the weak or underprivileged.
Is Roe v. Wade 'Settled Law?'
Alito, 55, has said he believes privacy is protected by the Constitution as it relates to the issue of abortion, although abortion is not specifically mentioned in that historical document.
He accepts the principles of Griswold v. Connecticut, which established that medical contraception fell under the right to privacy and legalized birth control, since it is precedent. Alito also said he believes that same protection is provided for single women.
Durbin said he was "troubled" that Alito has said he accepts the constitutional basis for Griswold but he can't clearly say whether the Constitution provides a basis for abortion. He said Roe v. Wade, the 1973 landmark abortion rights ruling, is a "natural extension" of Griswold and Alito's refusal to recognize that leaves in question "the future" of Roe. Chief Justice John Roberts said during his confirmation hearings that he considered Roe settled law.
Noting that currently several cases relating to abortion are making their way through the courts, Alito did not repeat Durbin's claim that Roe is "settled law of the land," but he did call it precedent and the more it is challenged and upheld, the stronger the precedent is.
"The more times that happens [is upheld], the more respect the decision is entitled to," he said.
Brownback said much care needs to be taken when using the term "settled law," since many legal scholars disagree that Roe is "settled," and some so-called "settled law" has been bad law and eventually was overturned. He noted that the Supreme Court has revisited about 200 cases because the decisions were indefensible. "Some precedents are undeserving of respect," Brownback said.
Alito dissented in the Planned Parenthood v. Casey case when the 3rd U.S. Circuit Court of Appeals struck down the Pennsylvania spousal notification law. He has said that's what he thought the law required.
Alito said 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.
Sen. Dianne Feinstein, D-Calif., tried to get Alito to answer why he would say that some cases are settled law but not Roe v. Wade.
"What concerns me ... is despite 38 tests, despite 33 years, despite the support of a majority of America, you also said yesterday that precedent is not an exorable command and those are the words Justice [William] Rehnquist used arguing for the overturning of Roe. So my question is, did you mean it that way?"
"It would be wrong for me to say to anybody who might be bringing any case before my court — if you bring your case before my court, I'm not even going to listen to you … go away, I've made up my mind … if that's what settled means, that's not what judges are supposed to do," Alito answered.
But Feinstein noted that this week Alito gave his view on the one-man, one vote issue, even though there are currently four cases pending before Supreme Court.
"That's where I have a hard time," Feinstein said. "If you're willing to say, 'one man, one vote,' is well settled and you agree with it, I have a hard time understanding how you separate Roe," She said, adding that she understands that " since he's trying to appease both sides of the aisle, he has to walk a fine line, "but the people are entitled to know."
"I don't think it's appropriate for me to speak about issues that will come up," Alito said.
Throughout the hearings, some Republicans have taken exception to the notion that the abortion precedent could not be overturned.
"Our founders didn't say you have to use stare decisis in this, did they?" Coburn asked, holding up a copy of the Constitution.
Graham warned his colleagues to not base their vote on Alito solely on the abortion issue and noted that Justice Ruth Bader Ginsburg was approved by a Senate vote of 96-3, despite the fact many senators thought she was too liberal on many issues, given her work at the American Civil Liberties Union.
"We can't build a judiciary around that one issue," Graham said. "I just beg my colleagues, let's not go down a road that the country cannot sustain and the judiciary cannot tolerate."
Religion, Gay Marriage and the Role of the Courts
On the issue of religious and holiday displays in public areas, which the Supreme Court has ruled on, Brownback on Wednesday said: "I really think we can have a public square that celebrates and it's not completely naked."
Alito said that the Constitution's establishment clause on which some of these cases have been decided has "drawn some very fine lines" on what religious symbols are accepted on public property.
Alito obviously cannot answer questions on how he feels about gay marriage, Brownback said, since the courts are likely to deal more with the issue as state courts continue to throw out state laws defining marriage as a union between one man and one woman.
On the Supreme Court eminent domain case, Kelo v. City of New London, Conn., Brownback noted that O'Connor wrote in her dissent that with the ruling allowing private property to be taken for public use, nothing is to prevent the state from taking any home for a Motel 6.
"This is one that people relied upon for a long time — you couldn’t take private property from another private individual for public use. I hope that's one the court will take another look at," Brownback said.
On this issue and others, particularly regarding wiretaps and presidential power, Alito has said:
— "The president has to comply with the Fifth Amendment and the president has to comply with the statutes that are passed," referring to the constitutional provision that guards against unreasonable search and seizures.
— He would approach the issues of cameras in the Supreme Court with "an open mind."
— On the role of the courts in end-of-life decisions, "Congress can give us a role in decisions of this nature or Congress can keep the federal courts out of it and leave it to the state courts where, for the most part, issues in this area have been adjudicated." But if a federal constitutional right is involved, the federal courts usually hear the cases, he added.
"This is obviously one of the most sensitive issues that comes up in our legal system," Alito said.