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Alito Tells Skeptical Democrats He Would Keep an Open Mind

January 11, 2006|Maura Reynolds, David G. Savage and Richard Simon | Times Staff Writers

Alito said his record as a judge had not been consistently antiabortion. He noted that he cast the deciding vote in a 2-1 ruling that struck down a Pennsylvania law and made it easier for low-income women to obtain free abortions if they were victims of rape or incest.

"If I had an agenda to uphold any regulation of abortion ... then I would have turned the decision the other way," he said.

And Alito disputed -- at least in principle -- the Bush administration's view of the sweep of presidential power during war.

News surfaced in December that more than four years ago Bush had authorized the National Security Agency to eavesdrop, without obtaining warrants, on people in the U.S. with known links to foreign terrorists. In a speech last month, Bush argued that he had the authority to issue such an order despite a 1978 law that prohibited the government from conducting electronic surveillance in this country without a warrant.

Can the president circumvent this law and bypass the courts? Leahy asked.

"The president has to comply with the 4th Amendment [which forbids unreasonable searches and seizures], and the president has to comply with the statutes that are passed," Alito said. "No person in this country is above the law, and that includes the president."

Asked whether he agreed with Justice Sandra Day O'Connor that the president did not have a "blank check" during wartime, Alito responded: "Absolutely."

"That's a very important principle," he said. "Our Constitution applies in times of peace and war ... and it's particularly important that we adhere to the Bill of Rights in times of war and in times of national crisis because that's when there's the greatest temptation to depart from them."

Alito expressed regret for reneging on a pledge he made as a federal appellate judge to recuse himself from any case involving the Vanguard Group, a mutual fund company in which he has owned shares.

He offered that assurance during his 1990 confirmation hearing, but in 2002 he was part of a three-judge panel that ruled in favor of Vanguard in a legal dispute.

"If I had to do it over again, there are things that I would have done differently," he said.

He said he did not believe he had violated "any ethical standard" by participating in the Vanguard case, but that he had breached his "own personal standard, which is to go beyond what the code of conduct for judges requires."

After the judicial panel that included Alito ruled in favor of Vanguard, the investor who sued the company complained about Alito's involvement in the case, and it was assigned to a new trio of judges. They also ruled in the company's favor.

"I just didn't focus on the issue of recusal," Alito told senators, calling it an "oversight."

Partly because of Alito's longer, more openly conservative legal record, he has drawn more opposition from Democrats than did Roberts, who was confirmed in September, 78 to 22. But most congressional observers expect him to be approved, although by a narrow margin.

"I sense from the body language and the tone of the questions that there's a growing sense of inevitability that he will, in fact, be voted favorably out of the committee and confirmed," Sen. John Cornyn (R-Texas) said.

Some Democrats disagreed.

"We have a long way to go," Schumer said. "We believe the burden of proof is on Judge Alito. This is not an anointment."

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