Under aggressive questioning by Democrats on the Senate Judiciary Committee, the nominee to succeed Justice Sandra Day O'Connor refused to go beyond his statement that Roe was entitled to significant respect as a precedent whose basic holding was reaffirmed by the high court in 1992.
Judge Alito, a member of the 3rd U.S. Circuit Court of Appeals, repeatedly drew a distinction between Roe and cases like Brown vs. Board of Education, the 1954 decision outlawing segregated public schools, and Griswold vs. Connecticut, a 1965 decision recognizing a right of marital privacy, both of which he has endorsed.
"The issue that was involved in Griswold, the possession of contraceptives by married people, is not an issue that is likely to come before the courts again," Judge Alito told Sen. Dick Durbin (D., Ill.).
"It's not likely to come before the 3rd Circuit, it's not likely to come before the Supreme Court.
So I feel an ability to comment - a greater ability to comment - on that than I do on an issue that is involved in litigation."
Judge Alito gave a similar answer when other senators pressed him to say that Roe was "settled law."
"It would be wrong for me to say to anybody who might be bringing any case before my court: 'Go away, I've made up my mind,'●" Judge Alito said.
"That's the antithesis of what courts are supposed to do. And if that's what 'settled' means, I think that is not what judges are supposed to do."
Democrats weren't satisfied.
"If you're willing to say that you believe one man, one vote is well settled and you agree with it, I have a hard time understanding how you separate out Roe," Sen. Dianne Feinstein (D., Calif.) told him.
Abortion was one of two issues to dominate the second day of questioning for Judge Alito.
The other conspicuous issue, Judge Alito's membership in the 1980s in a conservative Princeton University alumni group, precipitated a brief spat between committee chairman Arlen Specter (R., Pa.) and Sen. Edward Kennedy (D., Mass.).
In a 1985 application for a promotion in the Reagan Justice Department - the same document in which he wrote that "the Constitution does not protect a right to an abortion" - Judge Alito listed his membership in the Conservative Alumni of Princeton in response to a question asking for information "pertinent to your philosophical commitment to the policies of this administration."
Senator Kennedy has called CAP, a now-defunct organization that campaigned to preserve the traditional character of the formerly all-male Ivy League university, as a "radical, anti-women, and anti-minority alumni organization."
Yesterday, he cited offensive language in articles from the group's magazine including a statement that minorities and the handicapped "don't seem to know their place" and a suggestion that scientists inject gay students at Princeton with an AIDS-like virus.
Judge Alito, who has said he doesn't recall being active in the group and guesses that he joined because it opposed the expulsion of ROTC from Princeton's campus, condemned the sentiments quoted by Mr. Kennedy.
"If I had received any information at any point regarding any of the matters you referred to ... I would never have had anything to do with it," the judge said.
Republicans condemned Democrats for engaging in guilt by association by linking Judge Alito to discriminatory views in the group's publications.
"Are you really a closet bigot?" Sen. Lindsey Graham, (R., S.C.) sarcastically asked the nominee, who answered "No."
Senator Graham then told the judge: "I am sorry that your family has had to sit here and listen to this." At that point Judge Alito's wife, Martha, left the hearing room in tears.
The confrontation between Mr. Specter and Mr. Kennedy occurred after the latter suggested the committee should subpoena CAP documents kept at the Library of Congress to look for further connections between the nominee and the group.
"If I'm going to be denied that, I'd want to give notice to the chair that you're going to hear it again and again and again and we're going to have votes of this committee again and again and again until we have a resolution," Mr. Kennedy said.
Mr. Specter replied: "I'm not concerned about your threats to have votes again, again, and again. I'm the chairman of this committee. ... I'm not going to have you run this committee."
The rift was healed later when Mr. Specter said staffers were arranging to have the committee inspect records of the Conservative Alumni of Princeton.
Much of yesterday's hearing involved variations on questions posed Tuesday about the judge's views on presidential power and the charge that he disproportionately rules against women, minorities, and the "little guy."
As he did Tuesday, Judge Alito - with help from committee Republicans - calmly countered the criticism with examples of decisions in which his reading of the law favored the underdog, including a ruling allowing a student who had been bullied because classmates thought he was gay to transfer to a different public school.
In other testimony yesterday, Judge Alito:
● Agreed with Sen. Tom Coburn (R., Okla.) that the Supreme Court should not consult foreign law in interpreting the U.S. Constitution. "The Framers would be stunned by the idea that the Bill of Rights should be interpreted by a poll of the world," Judge Alito said.
● Told Mr. Specter he had an open mind about whether oral arguments in the Supreme Court should be televised, and noted that he had supported the idea of television cameras in the 3rd Circuit, only to be outvoted by fellow judges.
● Denied being a "clone" of Justice Antonin Scalia or any other high court justice.
Questioning of Judge Alito will continue today, followed by testimony from supporters of the nomination and opponents.
Contact Michael McGough at:
Guidelines: Please keep your comments smart and civil. Don't attack other readers personally, and keep your language decent. Comments that violate these standards, or our privacy statement or visitor's agreement, are subject to being removed and commenters are subject to being banned. To post comments, you must be a registered user on toledoblade.com. To find out more, please visit the FAQ.