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Senate Judiciary Committee Concludes Alito Hearings

January 13, 2006 at 12:00 AM EDT

KWAME HOLMAN: The Senate Judiciary Committee’s final day of hearings on the nomination of Samuel Alito included testimony from professional and character witnesses who either worked with the judge or had studied his judicial record. Though this last session was sparsely attended, ranking Democrat Patrick Leahy stressed its significance.

SEN. PATRICK LEAHY: We’re the only 18 people to get to ask questions on behalf of 295 million Americans and generations for a long time to come.

KWAME HOLMAN: But today, the witnesses did most of the talking. Laurence Tribe, a constitutional law expert at Harvard University, predicted how Justice Alito might rule if Roe versus Wade is reconsidered, a subject that dominated this week’s hearings.

LAURENCE TRIBE: With the vote of Judge Alito as Justice Alito, the court will cut back on Roe v. Wade step by step, not just to the point where, as the moderate American center has it, abortion is cautiously restricted, but to the point where the fundamental underlying right to liberty becomes a hollow shell.

KWAME HOLMAN: Tribe’s colleague at Harvard Law School, Charles Fried, disagreed. Fried and Alito worked together while Fried was solicitor general in the Reagan administration.

CHARLES FRIED: The idea that he would chip away at it, I’m not sure I know what that means. We do not know what the future holds, but I don’t expect him to do things which would be other than in the reasonable tradition of Casey, which I agree with professor tribe is a much better decision and a much better-founded decision than Roe.

KWAME HOLMAN: Abortion rights advocate Kate Michelman took a different view and framed her argument by comparing Alito to the justice he would replace, Sandra Day O’Connor.

KATE MICHELMAN: Justice O’Connor considered each case with careful attention to what the law means and who it affects, for she knows that that is the essence of justice. In Judge Alito’s approach to the law, there is neither justice nor regard for women’s human dignity. Judge Alito has parried challenges to his record by promising an open mind and a respect for precedent.

We must ask whether this assurance, offered only now, can be allowed to outweigh the totality of this man’s record. Millions of American women whose lives, privacy and dignity have a place in this debate would have to conclude no.

KWAME HOLMAN: Another Alito critic was Duke Law Professor Erwin Chemerinksy, who challenged Alito’s support for the unitary executive theory, seen as endorsing expansive presidential powers. It was the other legal issue that received major attention at the hearings this week.

ERWIN CHEMERINKSY: You ask what might be the implications of this. Well, the question will be, can the president engage in electronic eavesdropping in violation of the Foreign Intelligence Surveillance Act? It seems clear what the unitary executive theory would say about that. Can the president hold an American citizen as an enemy combatant without a warrant for arrest, a grand jury indictment or a jury trial? I can think of nothing more antithetical to the constitution, but the unitary executive theory would seem to say yes.

KWAME HOLMAN: But several former law clerks of Alito’s also testified, arguing that an accurate assessment of the judge requires a look beyond his writings and opinions. Lawyer Kate Pringle cited her experience in 1993.

KATE PRINGLE: I was then, as I am now, a committed and active Democrat. I had heard from some of my professors that Judge Alito had a reputation as a conservative, and I therefore expected his to be an ideologically-charged chambers in which I would battle to defend my liberal ideals against his conservative ones.

But what I found was something very different than what I had expected. I learned in my year with Judge Alito that his approach to judging is not about personal ideology or ambition, but about hard work and devotion to law and justice.

Judge Alito taught me to try to ignore my personal predispositions and to come to each case with an open mind. He taught me to work carefully through an analysis of the facts of the case and the legal precedents, and to try to find the resolution that flowed from that analysis.

KWAME HOLMAN: Hofstra University Law Professor Nora Demleitner also clerked for Alito.

NORA DEMLEITNER: He always listens, and I think that’s very important. And he can be moved. I mean, I remember writing memos to him and discussing cases with him where I thought this is his position, and he came out of oral argument and came out of the bench meeting with the judges afterwards and he had changed his mind.

So he’s not set, he’s not doctrinaire, and I think that’s important to know about him.

KWAME HOLMAN: But Reginald Turner of the National Bar Association returned to Alito’s record. His group is opposing the nominee.

REGINALD TURNER: Although these writings are 20 years old, they are relevant today because the views espoused by attorney Alito are reflected in the judicial record of Judge Alito.

His judicial opinions evidence an agenda to reverse hard fought civil rights gains and to limit improperly the authority and power of Congress, particularly in the area of providing remedies to unlawful discrimination, and protecting the health, welfare and safety of the American people.

SEN. ARLEN SPECTER: Thank you very much.

KWAME HOLMAN: Just before Chairman Arlen Specter concluded, he announced he would vote to confirm Judge Alito.

SEN. ARLEN SPECTER: I do not do that as a matter of having a party-line vote or loyalty. If I thought Alito should not be on the Supreme Court, I would vote no, just as I did to Bork.

With respect to Judge Alito’s qualifications, I think that they are agreed to. No doubt about quality of academic standing– Princeton, Yale– or his erudition or scholarship of working in the solicitor general’s office, office of legal counsel, 15 years on the bench.

KWAME HOLMAN: Though several Democrats on the committee are likely to vote against Alito, the judge is widely expected to be confirmed by the Republican-led Senate. The committee itself must first vote on Alito, but Specter and Leahy were unable to reach agreement on a date.

SEN. ARLEN SPECTER: This is about the first time Sen. Leahy and I haven’t agreed on something, but there has to be a first time for everything.

KWAME HOLMAN: Still, Chairman Specter said he expects to follow through on his plan for the committee to vote next Tuesday.

SEN. ARLEN SPECTER: And that, ladies and gentlemen, concludes the nomination hearing for Justice Samuel A. Alito, Jr. for the Supreme Court of the United States.