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Alito Leaves Door Open to Reversing 'Roe'
Membership In Controversial Group Surfaces As an Issue

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.

"It was one sentence," Alito replied. "And it certainly is not an attempt to set out a comprehensive view on the subject."

The day's most sizzling exchanges involved Alito's assertion, in the same job application, that he had belonged to Concerned Alumni of Princeton, a group that at that time had rallied conservatives and drawn considerable public notice.

Alito told the committee he does not remember joining the now-defunct group -- founded in 1972, the year he graduated from Princeton University -- and does not know anything about it. Democrats challenged him sharply, wondering aloud if he used the club to impress Reagan conservatives but now wants to distance himself from its outspoken opposition to efforts that brought more women and minorities to Princeton.

The committee's ranking Democrat, Sen. Patrick J. Leahy (Vt.), said Alito's forgetfulness seemed too convenient. "If he didn't know what they stood for, he had to be about the only person in America who didn't know what they stood for," Leahy said.

At midday, Kennedy employed large blue charts showing quotes from articles published in the group's magazine, Prospect. "People nowadays just don't seem to know their place," a November 1983 article said. "Everywhere one turns, blacks and Hispanics are demanding jobs simply because they're black and Hispanic. . . . Homosexuals are demanding the government vouchsafe them the right to bear children. . . . And now come women."

Alito said he had read none of the articles, adding, "I would not have anything to do with statements of that nature."

Kennedy then called on Specter to subpoena records on the alumni group held in the Library of Congress. Noting that the group had received significant press coverage, Kennedy said the records might show Alito was more involved than he has acknowledged.

Kennedy said Specter had ignored his letter to him last month seeking the documents. The chairman retorted that he had never seen it. "I take umbrage at your telling me what I received," he said. When Kennedy persisted, Specter snapped, "I'm not going to have you run this committee."

Their quarrel cooled after Democratic and Republican staff members went to the Library of Congress to review the documents. But emotions rose again in the late afternoon when Alito's wife, Martha, clutching a tissue, raced to the back of the hearing room in tears, then was ushered by security guards through a side door, after debate over the alumni group resumed.

She left during an exchange in which Sen. Lindsey O. Graham (R-S.C.), an Alito supporter, played devil's advocate by summarizing the Democrats' attacks. He asked Alito, "Are you really a closet bigot?"

"I'm not any kind of bigot. I'm not," Alito said.

Graham told Alito he believed him because of "the way you have lived your life and the way you and your wife are raising your children" and, referring to the Democrats' criticisms, said, "I am sorry that your family has had to sit here and listen to this." At that point, Martha Alito rose and left her front-row chair immediately behind her husband, returning about an hour later.

On other issues, Alito told Sen. Sam Brownback (R-Kan.) that some judges have gone too far in trying to remove religious activities from public life. He cited public school teachers who refused to let children read a short Bible story or display a hand-drawn picture of Jesus. "You have to treat religious speech equally with secular speech," Alito said.

Later, Sen. Herb Kohl (D-Wis.) said that, as an appeals court judge, Alito had seldom sided with immigrants who were trying to win asylum or block deportation. Alito replied that he was following Congress's clear-cut laws on immigration policy.

"My role is not to substitute my judgment for that of the immigration judge," he said. "My job is to say, 'Could a reasonable person have reached the conclusion that the immigration judge did?' "

As Democrats tried to pry loose Alito's views on abortion, a group supporting abortion rights, Republican Majority for Choice, announced it is opposing his nomination. Five GOP senators are on its advisory committee, including Specter.

Asked about the group's stance, Specter, who has said he will not decide how he will vote until after the hearings, said: "I did not participate in their decision."

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