Alito Leaves Door Open to Reversing 'Roe'

Senate Judiciary Chairman Arlen Specter, left, speaks to Sen. Joseph R. Biden Jr. during a break at the confirmation hearings for Samuel A. Alito Jr.
Senate Judiciary Chairman Arlen Specter, left, speaks to Sen. Joseph R. Biden Jr. during a break at the confirmation hearings for Samuel A. Alito Jr. (By Melina Mara -- The Washington Post)
By Amy Goldstein and Charles Babington
Washington Post Staff Writers
Thursday, January 12, 2006

The once-sluggish confirmation hearings for Supreme Court nominee Samuel A. Alito Jr. turned confrontational yesterday, as the nominee signaled he might be willing to revisit the ruling that legalized abortion nationwide and Democrats pummeled him over his membership in an alumni group that wanted to restrict enrollment of women and minorities.

Tempers flared openly between the Senate Judiciary Committee's Republican chairman and eldest Democrat, and the nominee's wife fled the marbled hearing room in tears before the day ended with Republicans predicting that Alito will win confirmation, although by a slim margin.

Throughout the day's more than seven hours of questioning, Democratic senators regularly accused Alito of giving incomplete, inconsistent answers. Republicans accused Democrats of being unfair. At one point, Sen. Jon Kyl (R-Ariz.) complained after Sen. Edward M. Kennedy (D-Mass.) read aloud magazine excerpts published in the 1980s by Concerned Alumni of Princeton and espousing views Kyl branded as "very scurrilous."

The drama of the hearings' third day nearly overshadowed the significance of the position Alito staked out on the landmark abortion case, Roe v. Wade . Senators also branched into new territory: Alito's record from 15 years on the Court of Appeals for the 3rd Circuit on cases involving religion, immigrants seeking to prevent deportation, and criminals' rights.

Alito edged closer to suggesting that he might be willing to reconsider Roe if he is confirmed to the high court, refusing, under persistent questioning by Democrats, to say that he regards the 1973 decision as "settled law" that "can't be reexamined." In this way, his answers departed notably from those that Chief Justice John G. Roberts Jr. gave when asked similar questions during his confirmation hearings four months ago.

Yesterday, Alito said that Roe must be treated with respect because it has been reaffirmed by the high court several times in the past three decades.

But when Sen. Richard J. Durbin (D-Ill.) peppered Alito with questions about whether the ruling is "the settled law of the land," the nominee responded: "If 'settled' means that it can't be reexamined, then that's one thing. If 'settled' means that it is a precedent that is entitled to respect . . . then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis." Stare decisis is a legal principle that, in Latin, means "to stand by that which is decided."

During Roberts's confirmation hearings, he, too, was reluctant to disclose how he would vote if asked to overturn Roe . But during the 2003 hearing on his nomination to the Court of Appeals for the D.C. Circuit, he had said he viewed the ruling as settled law.

And during Roberts's hearings to become the nation's chief justice, Judiciary Committee Chairman Arlen Specter (R-Pa.) had asked, "Do you mean settled for you, settled only for your capacity as a circuit judge or settled beyond that?" Roberts replied: "Well, beyond that, it's settled as a precedent of the court."

After his exchange with Alito yesterday, Durbin told reporters: "Sam Alito would not use those same words. It really, I'm afraid, leaves open the possibility that we are considering the nomination of a justice who will change 30 years of law in this country, a dramatic change to the American society."

Sen. Tom Coburn (R-Okla.) suggested that Durbin is ill-suited to challenge Alito's views on abortion because Durbin once opposed abortion rights and changed his mind.

Alito told several senators that he felt constrained from saying whether he regards Roe as settled because abortion remains a live issue in the courts. Sen. Charles E. Schumer (D-N.Y.) reminded Alito that he has willingly said other areas of the law were settled even though they remain in play and that, in a 1985 application for a promotion in the Reagan administration's Justice Department, he had written he did not believe the Constitution protects the right to an abortion.

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