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Alito: 'Open mind' on abortion rights

On presidential power, nominee backs limits but avoids specifics

From Bill Mears
CNN Washington Bureau


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WASHINGTON (CNN) -- Supreme Court nominee Samuel Alito walked a careful line on abortion rights and other topics on Tuesday, drawing expressions of frustration from some Democrats and praise from Republicans.

The nominee reaffirmed his respect for established court rulings and said he would approach the hot-button abortion issue with "an open mind."

His comments came on the Senate Judiciary Committee's first day of hearings for Alito, whom President Bush nominated October 31 to replace retiring Justice Sandra Day O'Connor, a swing vote upholding abortion rights.

Seated in front of his wife and other family members, Alito was largely successful in avoiding controversy in questioning, giving assured answers to a range of legal and personal issues.

In a session that spanned more than nine hours, he never explicitly refused to respond to a question, but sidestepped addressing specific issues, including whether Bush was legally justified in ordering wiretaps without warrants. (Alito's key remarks)

Committee Chairman Arlen Specter, a Pennsylvania Republican who supports abortion rights, launched the questioning by seeking Alito's views on whether repeated previous rulings should prevent the right to abortion from being overturned.

Alito said following precedent is "very important," and "special justification" would be needed to overturn previous decisions. But he tempered his remarks by saying strict adherence to past rulings is not "an inexorable command." (Watch Alito address abortion and the law -- 6:05)

He said the Constitution provides clear language on issues like freedom of speech, but is less clear on abortion.

Some of the most pointed questions on the issue came from Sen. Dianne Feinstein, a California Democrat and the only woman on the panel.

In heated questioning about Alito's position on the 1973 Roe vs. Wade decision legalizing abortion, Feinstein pressed for examples of what would qualify as a "special justification."

Alito responded by citing scenarios in which a rule "is proven to be unworkable" or when "changes in the situation in the real world can call for the overruling of a precedent."

He also said he does "agree that the Constitution protects a right to privacy." That right is part of the legal underpinning for Roe vs. Wade.

But Sen. Charles Schumer, a New York Democrat, called Alito's unwillingness to directly address Roe vs. Wade "troubling" and said he could only conclude the nominee would overrule the precedent if given the chance.

Alito, 55, tried to deflect concern about comments he made in a 1985 memo that advocated a legal strategy of seeking to gradually overturn Roe v. Wade.

He said that was "a true expression of my views at the time," when he "was performing a different role" as a government lawyer for the Reagan White House.

In a 1985 job application, Alito said he believed "the Constitution does not protect a right to an abortion."

He told senators his role in recent years as a federal judge compels him to put his personal views aside. He added that if confronted with an abortion case on the Supreme Court, "the first question I would ask" would be whether precedent should prevail.

Alito's most scrutinized case as a judge came in 1991 when he disagreed with the majority that struck a Pennsylvania law requiring women seeking abortions to notify their husbands.

Explaining his reasoning, Alito said, "I did it because that's what I thought the law required." (Watch Alito talk about his judicial philosophy -- 6:13)

Presidential authority

The first five senators to question Alito all asked about executive power, but he avoided giving specifics on whether Bush had the power to unilaterally decide to conduct surveillance of U.S. citizens.

Bush acknowledged last month that he secretly authorized the National Security Agency to conduct wiretaps on some Americans without court approval in the months after the September 11, 2001, terrorist attacks.

"No person is above the law, and that means the president, and that means the Supreme Court," said Alito. (Watch what Alito had to say about presidents obeying the law -- 5:25)

He added the president has no authority to order anyone to violate a congressional law, including one banning torture of captured soldiers or suspected terrorists.

"Our Constitution applies in times of peace and in times of war. And it protects American citizens in all circumstances," he said.

But he said some issues related to presidential authority fall into a "twilight zone" that would require examination on a case-by-case basis.

Vanguard case

Regarding questions that in 2002 he ruled in favor of a company in which he owned nearly $400,000 in mutual funds, Alito said he "had not violated ethical standards."

But he later withdrew from the case when questions of conflict of interest were raised. (Watch Alito grilled on Vanguard -- 7:53)

Alito was not sanctioned, and legal ethicists have been split on whether there was any technical violation of judicial conduct laws.

Sen. Orrin Hatch, a Utah Republican, said Alito "went above and beyond the call of duty" by recusing himself, even though, Hatch said, the judge was not legally or ethically required to do so.

Sen. Edward Kennedy, a Massachusetts Democrat, hammered the nominee on the issue, saying Alito pledged in 1990, when he was confirmed for his current job, to recuse himself from hearing such cases.

Police powers

Kennedy also told Alito his record shows an unfair preference for police powers over individuals.

Kennedy cited a 2004 case in which Alito disagreed with the majority that officers in Pennsylvania could be sued after conducting a strip search on a drug suspect's 10-year-old daughter. The senator said the girl would carry the emotional "scars of that activity for the rest of her life."

The judge said he was not happy with what the girl endured, but added, "If we had a rule where minors could never be searched, we know where drug dealers would then hide their drugs. That could lead to even greater abuse of children."

He said he favored a "common sense approach" where police could reasonably search all people in a house, if a warrant authorized it.

White House praise

Asked why he wanted the job as justice, Alito said, "This is a way for me to make a contribution to the country and society."

During a midday break, Kennedy said, "Americans have no better answers than we had at the outset of these hearings."

The White House thinks otherwise, with spokesman Scott McClellan telling reporters, "I think Judge Alito very clearly summed up the foundation of his judicial philosophy."

Sen. Lindsey Graham, a South Carolina Republican, told Alito, "You've done a great job; you've been very forthcoming."

Hearings were scheduled to resume Wednesday morning. Specter said Monday that he hoped the committee could vote on Alito's confirmation next week and the full Senate -- where the GOP controls 55 seats -- could vote the following week.

Other issues:

  • The nominee refused to say how he would have voted in the 2000 Bush v. Gore high court appeal that stopped the Florida vote recount, thereby giving the presidency to Bush.
  • Sen. Mike DeWine, an Ohio Republican, asked Alito about Congress' ability to protect children from Internet pornography without violating the right to free speech. "It is a difficult question," Alito said. "There needs to be additional effort in this area, probably by all branches of government."
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