WASHINGTON—In tense exchanges with Democratic senators Wednesday, Supreme Court nominee Samuel Alito refused to declare that Roe v. Wade is settled law and stopped short of statements that Chief Justice John G. Roberts made before becoming a judge and that he reaffirmed during his confirmation hearings last September.
Alito's reluctance makes it easier for critics to brand him as a justice who could help overturn the 33-year-old ruling, which extended constitutional protection to abortion rights. It could also cost him Democratic support in the Senate, already lower than what Roberts enjoyed.
Roberts won 22 Democratic votes when the Senate confirmed him last September. Alito will almost certainly get fewer, though his Republican support appears solid enough to ensure his confirmation, barring any future stumbles.
Democrats turned more aggressive in questioning Alito on Wednesday, his third day of testimony, zeroing in not only on abortion but also on his membership in the Concerned Alumni of Princeton. Alito listed the conservative group in a 1985 application for promotion while a lawyer in the Reagan administration.
At the insistence of Sen. Edward Kennedy, D-Mass., committee chairman Sen. Arlen Specter, R-Pa., agreed to review Library of Congress papers belonging to William Rusher, a founder of the Concerned Alumni of Princeton and publisher of the National Review, a conservative magazine.
The group formed in 1972 partly in opposition to Princeton's decision to admit women. CAP members have also opposed expanded minority admissions.
Alito testified that he didn't recall when or why he joined the group. He said he rejected the group's views on women and minorities. But he said he shared its support for keeping Reserve Officer Training Corps programs on campus. The New York Times reported in November that a review of Rusher's papers revealed no evidence that Alito played a major role in the organization.
Alito's wife, Martha-Ann Bomgardner, at one point broke into tears and walked out of the hearing room as Alito was answering friendly questions from Sen. Lindsey Graham, R-S.C. Graham was expressing sympathy for Alito and his family and the barrage of questions they'd faced throughout the day.
"Are you really a closet bigot?" Graham asked.
"I'm not any kind of a bigot, I'm not," Alito said.
"No sir, you're not," Graham replied. "And you know why I believe that? Not because you just said it—but that's a good enough reason—because you seem to be a decent, honorable man."
At that point Bomgardner left the room.
Alito fended off hostile questions with a low-key, unflappable manner, and most Democrats appeared reluctant to force much of a confrontation with him. The most pointed exchanges came when they tried to nail him down on abortion law.
Alito strongly endorsed the idea that judicial precedent merits respect by later courts, and he said several times that Roe v. Wade deserved the "respect" that other precedents get. He also agreed that Casey v. Planned Parenthood, the 1992 Supreme Court ruling that reaffirmed Roe v. Wade, was a precedent entitled to "respect" and that it strengthened Roe's authority.
But when Sen. Richard Durbin, D-Ill., pressed him to go further, Alito demurred, effectively refusing to state that the Supreme Court shouldn't consider overturning Roe.
"Do you believe (Roe v. Wade) is the settled law of the land?" Durbin asked.
"If `settled' means that it can't be re-examined, that's one thing," Alito said. "If `settled' means that it is a precedent that is entitled to respect as stare decisis and all of the factors that I've mentioned come into play, including the reaffirmation and all of that, then it is a precedent that is protected."
Alito repeated that he was unable to go further because abortion litigation is constantly coming before the court, and it would be inappropriate to commit himself on a question he may have to rule on, should he be confirmed.
Sen. Dianne Feinstein, D-Calif., seized on that line.
"You were willing to give your view on one man, one vote," Feinstein said. "And yet there are four cases pending in the court right now on one man, one vote. I have a hard time understanding how you separate out Roe."
Alito said he didn't think it was appropriate to talk about issues that could come up before the court, explaining that he had no problem talking about cases such as Brown v. Board of Education, the 1954 ruling that outlawed racial segregation in public schools, because a legitimate challenge to desegregated schools was very unlikely to come before the court.
Feinstein said Alito's response troubled her, but she wouldn't say how she would vote on his confirmation.
Ed Gillespie, a former Republican National committee chairman who has been escorting Alito through the Capitol, drew a distinction between a judge accepting Roe as "settled law," which is what Democrats asked Alito to embrace, and "settled precedent," the term Roberts used in his confirmation hearing.
Settled law would be the standard for appellate court judges because they have to apply Supreme Court precedent to lower-court decisions, Gillespie said. He argued that settled precedent would not have the strength of settled law because the Supreme Court justices could still overturn it.
Specter said that while Democrats argued that Alito stopped short of Roberts' characterization of Roe, "I think they're probably pretty close on that."
In what could be a complication for Alito, the Republican Majority for Choice, an organization representing pro-abortion rights Republicans, announced its opposition to Alito on Wednesday.
"The reality is that Judge Alito would not have to vote to overrule Roe in order to be the architect of the denial of a woman's right to choose," the group said. "He could give lip service to respecting Roe while upholding the numerous legislative efforts to chip away at reproductive freedom."
The group's advisory committee includes moderate Republicans Sens. Lincoln Chafee of Rhode Island, Susan Collins and Olympia Snowe of Maine, and Specter.
Specter, chairman of the Judiciary Committee, questioned Alito on abortion and later praised him for his extensive answers. After Wednesday's hearing he said he wasn't party to the group's statement and would reserve judgment on his vote.
The other three senators aren't members of the committee, but are members of a bipartisan "Gang of 14" that could determine whether a Democratic-led filibuster against Alito succeeds.
Snowe, in a statement, said she would fully review Alito's record before deciding whether to support him. Snowe spokeswoman Antonia Ferrier said the Republican Majority for Choice notified Snowe of its stand on Alito.
"Their views don't necessarily reflect hers," Ferrier said. "But she will take them into account."
Graham said he saw no reason why Alito's views would be the kind of "extraordinary circumstance" that the "Gang of 14" has said would be necessary to mount a successful filibuster. Graham is one of the 14.
Sen. Sam Brownback, R-Kan., a panel member who's a staunch abortion opponent, said he was "pretty certain" he would vote for Alito. But, he added, "I'm not happy. I would love for him to be there and say, `Look, I don't think Roe is in the Constitution. And he's obviously not saying that. He's leaving the issue open."
Still, Brownback conceded that any court nominee who opposed Roe outright would be filibustered. "So you're left like this, if he answers Roe either way, he's caught."
(c) 2006, Knight Ridder/Tribune Information Services.
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