Cautious Alito follows Roberts's script in quest for Supreme Court spot
Nominee shows his grasp of the Constitution but stays tight-lipped on key issues dividing Americans.
Supreme Court nominee Samuel Alito has apparently survived the most important job interview of his life. He did it by saying just enough - but not too much.
After three days of rigorous questioning by the Senate Judiciary Committee, Judge Alito's strategy of being tight-lipped on issues that matter most has left the American public precious few nuggets of solid information and a truckload of vague impressions.
Like Chief Justice John Roberts in his hearings last fall, Alito was willing to reveal his opposition to the use of foreign legal precedents to aid in the interpretation of the US Constitution.
And - unlike Roberts - he expressed sympathy for New London, Conn., homeowners who lost their Supreme Court bid last summer to prevent seizure of their homes for private economic development.
But on the most contentious issues currently before the high court, such as abortion and the scope of presidential power, the appeals court judge from New Jersey offered few specifics that might help Senators - and citizens - better gauge his future performance should he win Senate confirmation as the replacement for retiring Justice Sandra Day O'Connor.
On abortion, Alito said: "I would approach the question with an open mind."
Abortion opponents hope that means he is open to overturning the Roe v. Wade abortion precedent.
Few abortion-rights advocates accept that he is open to upholding it.
When pressed by Sen. Dianne Feinstein (D) of California on whether he agreed with Chief Justice Roberts' testimony that the Roe precedent is "well settled," Alito responded: "That depends on what one means by the term 'well settled.' "
The judge rejected suggestions that he has been following a conservative agenda on the Third US Circuit Court of Appeals. He said his record shows that he has struck down abortion restrictions when he felt such rulings were required by the law.
"If I had an agenda to uphold any abortion regulation that came along," he told the senators, "I would not have voted as I did in my Third Circuit cases."
On the scope of the president's power as commander in chief to authorize torture or warrantless surveillance within the US, Alito responded: "Nobody in this country is above the law, and that includes the president."
When pressed for specifics, Alito said the president must follow the Constitution and the "laws that are enacted consistent with the Constitution."
Bush administration lawyers maintain that the Constitution grants broad, inherent commander in chief powers to the president in times of national peril. Alito did not directly address that controversial position, but he did refer several times to a 2001 enactment by Congress authorizing the president to use whatever force he deems necessary to protect the nation from terror attacks.
The Supreme Court itself is sharply split over the extent to which the 2001 resolution authorizes the president's antiterror efforts.
One hint that Alito may not be an automatic vote supporting expansive presidential power came in a comment about the internment of Japanese-Americans during World War II. He called it "one of the great constitutional tragedies that our country has experienced."
His testimony is peppered with constitutional platitudes that civil libertarians might view as reassuring. "Our Constitution applies in times of peace and in times of war, and it protects the rights of Americans under all circumstances," he said.
But when asked about President Bush's authorization to conduct surveillance in the US without first obtaining the permission of a judge, Alito also said the law sometimes permits such actions under extreme circumstances.
Alito even declined to reveal his legal view on whether terrorism is a crime or an act of war.
By adopting the same kind of cautious strategy used by Roberts, Alito is hoping that his comprehensive grasp of constitutional law and his apparent philosophy of judicial restraint will win the support of centrist senators as it did for Roberts.
But unlike Roberts, Alito's 15 years as a federal appeals court judge and his writings while serving in the Reagan administration in the 1980s have left a significantly more revealing paper trail.
In addition to attempting to pin him down on the issues, Democrats on the Judiciary Committee attacked Alito for his association with a conservative alumni group from Princeton University that opposed the enrollment of women and minorities at the Ivy League school.
Alito listed his membership in the group on a 1985 application to work in the Reagan Justice Department. But Alito told the senators he has no recollection of ever participating in the group. He said he disagreed with the group's position on women and minorities, but must have joined because its members supported returning the ROTC program to the Princeton campus.
The judge was asked why he would list membership in such a controversial group on a job application. He said he couldn't recall why he included it.