Alito says he would approach abortion with open mind as high court justice

WASHINGTON -- Supreme Court nominee Samuel Alito said Tuesday 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.

White House confident

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.

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

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.

While citing the importance of precedent, Alito also said several times it was not an "inexorable command" for justices.

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 that you did as a lawyer at prior points in your legal career."

Alito told the Judiciary Committee that courts in general should follow their earlier decisions and avoid being moved by public opinion on controversial issues.

"I think that the legitimacy of the court would be undermined in any case if the court made a decision based on its perception of public opinion," 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.

"Time and again, even in routine matters involving average Americans, you give enormous, almost total deference to the exercise of governmental powers," said the Massachusetts senator.

Merit-based decisions

Later, asked to respond to the criticism, Alito said that he has tried to decide each case on its merits: "Sometimes that means siding with the government, sometimes it means siding with the party that's claiming a violation of rights."

Committee chairman Arlen Specter, R-Pa., questioned 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.

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

Alito didn't answer directly when Specter asked 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.

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. Asked if he opposed the admission of women and minorities in colleges, Alito said, "Absolutely not," and added that after a short time at the school, "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 distanced himself from several positions of Robert Bork, the conservative whose Supreme Court nomination failed in 1987. In a 1988 television interview, Alito called Bork "one of the most outstanding nominees of this century."

Questioned about Bork's statements on abortion and executive power -- and whether he concurred -- Alito said, "I was an appointee in the Reagan administration and Judge Bork had been a nominee of the administration and I had been a supporter of the nomination." He added that he didn't agree with Bork on a number of issues.

--Asked repeatedly about whether the Supreme Court should have decided Bush v. Gore, the case that settled the 2000 election, Alito declined to answer, saying he hadn't studied the case.