Alito says he would approach abortion with open mind

WASHINGTON – Supreme Court nominee Samuel Alito said today he would deal with the issue of abortion with an open mind as a justice, though he defended his 1991 judicial vote saying women seeking abortions must notify their husbands.

In the second day of Senate hearings, Alito also said no president or court is above the law — even in time of war — as he addressed questions on presidential powers. The issue has been at the forefront since the revelation that President Bush had secretly ordered the National Security Agency to conduct wiretaps of Americans in the terror war.

The federal judge also faced tough questions about his decisions during 15 years on an appeals court, his writings on wiretaps and his membership in a college organization opposed to the admission of women and minorities.

Alito's answers and his demeanor at the hearings could be critical to his prospects of winning Senate confirmation as the 110th Supreme Court justice. The White House expressed confidence that he would prevail in the Republican-controlled Senate.

Bush's choice for the high court said his Reagan-era writings opposing abortion reflected an attorney representing a client's interests and, if confirmed and faced with an abortion case, "I would approach the question with an open mind."

The conservative jurist gave no indication how he would vote if faced with the question of whether to overturn the Supreme Court's 1973 Roe v. Wade decision establishing a woman's right to an abortion.

The judge defended his dissent in the 1991 case of Casey v. Planned Parenthood, in which the 3rd U.S. Circuit Court of Appeals struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses.

The Supreme Court also rejected the spousal notification, but Chief Justice William Rehnquist quoted from Alito's opinion in his own dissent. The high court, on a 5-4 vote, upheld a woman's right to the procedure but was divided on other elements of the case.

Alito told the Senate Judiciary Committee: "I did it because that's what I thought the law required."

In a 1985 memo as an official of the Reagan administration, Alito described a legal strategy for chipping away at abortion rights. Questioned about the document, he told the committee, "That was a statement that I made at a prior period of time when I was performing a different role and, as I said yesterday, when someone becomes a judge you really have to put aside the things you did as a lawyer at prior points in your legal career."

Bush's pick to replace retiring Justice Sandra Day O'Connor told the Judiciary Committee that courts in general should follow their earlier decisions and avoid being moved by public opinion on controversial issues.

"The legitimacy of the court is undermined if it makes its decision based on public perception," Alito said.

Alito, who has been criticized by opponents for advocating broad presidential powers, said he did not believe war allowed the president to bypass the Constitution.

"No person is above the law, and that means the president and that means the Supreme Court," the judge said.

Democratic Sen. Edward Kennedy told Alito that his judicial opinions suggest otherwise.

"You give enormous, almost total deference to the exercise of executive power," said the Massachusetts senator.

Committee Chairman Arlen Specter, R-Pa., started the hearing by questioning Alito about abortion and privacy rights, divisive issues that loom large as the Senate decides whether to confirm the conservative jurist.

Alito told the panel that he agrees "with the underlying thought that when a precedent is reaffirmed, that strengthens the precedent."

Alito said he doesn't believe in the idea of a super precedent — or, he added, in a moment of levity, "super-duper" precedents either.

O'Connor, whom Alito would replace, wrote in 2004 that "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens." Specter asked Alito his view on her comments, and Alito said he endorsed them.

"It's a very important principle," Alito said. "Our Constitution applies in times of peace and in times of war. And it protects American citizens in all circumstances."

Alito didn't answer directly when Specter asked about whether the November 2001 act of Congress authorizing use of force against terrorists responsible for the Sept. 11 terrorist attacks gave the president the authority to order warrantless wiretaps, as the administration contends.

"These questions are obviously very difficult and important ... and likely to arise in litigation even before my own court or before the Supreme Court," he said.

Like Chief Justice John Roberts at his confirmation hearings in September, Alito repeatedly explained his writings as a lawyer in Republican Justice Departments as examples of an attorney representing a client.

In a 1984 memo, Alito suggested that the attorney general should be immune from lawsuits when acting to protect national security — even if it included illegal wiretapping of U.S. citizens. At issue was a lawsuit against President Nixon's attorney general, John Mitchell.

Alito said he believed the case could be made for such immunity. Asked if he believes now that an attorney general should be immune from civil liability, Alito said, "No, he would not. That was settled in that case."

In a 1985 application for a job in the Reagan Justice Department, Alito cited his membership in the Concerned Alumni of Princeton, a conservative group known for its opposition to opening the school to women and bringing in more minorities.

"I have no specific recollection of that organization," Alito told the panel. The Princeton graduate said he was not actively involved in the conservative organization.

Asked if he opposed the admission of women and minorities in colleges, Alito said, "Absolutely not," and added, "I had never attended a non-coeducational school until I went to Princeton and after I was there a short time I realized the benefits of attending a coeducational school."

On other issues:

—Alito pledged in 1990 that he would recuse himself from cases involving the Vanguard companies. Some Alito opponents say his participation in a 2002 Vanguard case raises doubts about his fitness for the Supreme Court. Alito holds six-figure investments with Vanguard.

"If I had to do it over again there are things that I would do differently," said Alito, although he also said he did nothing wrong.

—He defended his 2004 dissent in which he supported the strip search of a 10-year-old girl, explaining that his interpretation was based on "common sense" that a warrant included searches of anyone on the premises of a drug suspect.

—Alito acknowledged an example of precedent evolving into accepted practice, and a justice changing his opinion. Specter noted that Rehnquist had initially opposed the familiar Miranda warning used by police and then later supported the required statement, which begins, "You have the right to remain silent. ..."

"In that instance, police departments had adapted to the Miranda rule, had become comfortable with it ... began to regard it as a good way of dealing with a difficult problem," Alito said.