By Charles Babington
Washington Post Staff Writer
Saturday, November 5, 2005
In private meetings with senators, Supreme Court nominee Samuel A. Alito Jr. has shown a willingness to discuss key issues -- a potentially risky strategy that so far seems to be serving him well, several senators said.
On contentious issues including privacy, property rights and public displays of religious beliefs, Alito has been more willing to share personal or judicial thoughts than were recently confirmed Chief Justice John G. Roberts Jr. and White House counsel Harriet Miers, whose nomination was withdrawn, these senators said.
Alito stopped short of signaling how he might rule on cases before the court, they said, but he seemed less worried that insights into his thinking might be used against him in the Judiciary Committee hearing, to begin Jan. 9.
For example, committee Chairman Arlen Specter (R-Pa.) said in an interview yesterday that Alito "was more forthcoming in talking about Casey " -- a 1991 ruling in which an appellate court struck down a Pennsylvania law that required married women to inform their husbands before having an abortion.
Alito dissented in the case, arguing that few married women have abortions without telling their husbands, and that the requirement was not an "undue burden." The dissent was narrowly drawn, Specter said, adding that Alito is smart to explain his thinking on such matters in courtesy calls to senators.
"I think it's going to be helpful for him when he's more forthcoming," the chairman said. "He makes dissents on very narrow grounds, which is ideal for a judge. . . . He is what he is, and he can talk about what he is."
Talking about hot-button issues such as abortion, even in general terms, runs counter to the conventional wisdom that a court nominee should say as little as possible to deny ammunition to opponents. Liberal groups are already citing Casey as evidence that Alito is unacceptably conservative. The group People for the American Way is airing a TV ad that says President Bush is "giving the radical right wing the power to choose who sits on the Supreme Court."
Some top Democrats share Specter's endorsement of Alito's comparative openness. Sen. Richard J. Durbin (Ill.) -- the party's second-ranking leader and one of 22 Democrats who voted against Roberts's confirmation -- met for 40 minutes with Alito on Wednesday. Durbin told reporters that the nominee agreed to answer all his questions, unlike Roberts and Miers.
On the issue of privacy, the legal underpinning for the Roe v. Wade abortion-rights ruling, Durbin said: "He satisfied me that he recognized this to be one of the unenumerated rights in the Constitution, and he led me to believe that he felt that it was an established right."
Other senators have expressed pleasure in Alito's apparent sympathy for looser restrictions on public expressions of faith. Several lawmakers have accused the Supreme Court of handing down conflicting rulings on when the Ten Commandments may be displayed. Many liberal groups fear further erosion of the separation of church and state if the court shifts to the right.
"He indicated he felt that the people have a right, have a very distinct right, to express their religious views," Sen. Robert C. Byrd (D-W.Va.) said after meeting with Alito this week.
Sen. John Cornyn (R-Tex.) told reporters that Alito "did commiserate with me a little bit about the problems that the Supreme Court has had in coming up with a coherent body of law that is clear and can be easily applied, and can be predictable in a way that doesn't discourage people from expressing their religious views."
Alito was also relatively talkative on the issue of when local governments may force property owners to sell their land and buildings, an emotional topic in the last Supreme Court term, senators said.
Sen. Kay Bailey Hutchison (R-Tex.) told reporters the nominee "said that from life, liberty and property then evolved all of the things that would include the pursuit of happiness, and that property would have been one of those factors. . . . I thought that he was basically saying that private-property rights were very important in the writing of the Constitution and remain so today."
Sen. Lindsey O. Graham (R-S.C.), a Judiciary Committee member, said Alito is handling himself brilliantly. "He wears his judicial philosophy as comfortably as an old sweater," Graham said. "He's comfortable with who he is and what he believes. . . . I told him to keep it up."