WASHINGTON (ABP) — While senators waxed eloquent on many of their pet issues during the opening day of confirmation hearings for President Bush's nominee to replace Justice Sandra Day O'Connor on the Supreme Court, one hit the primary issue on the head: abortion.
“The real debate here is about Roe [v. Wade],” said Sen. Tom Coburn (R-Okla.), speaking about the court's landmark 1973 decision that legalized abortion nationwide. “We're going to go off in all directions, but the decisions we make…are going to be made on Roe.”
Coburn's comments came during opening statements on the first day of the Samuel Alito confirmation hearings in the Senate Judiciary Committee. Alito, currently a judge on the 3rd U.S. Circuit Court of Appeals in Philadelphia, has been tapped by Bush to replace O'Connor. The committee is charged with evaluating Alito and recommending his nomination to the full Senate, which must then vote on the nominee before he assumes O'Connor's seat.
The retiring justice's vital role on the court for more than 20 years made the hearings particularly dramatic. O'Connor served as a crucial “swing vote” for the majority in a host of 5-4 decisions, many of them on highly controversial issues. As anti- and pro-Alito ads aired in markets around the nation, scores of reporters and photographers packed the hearing room.
Sen. Arlen Specter (R-Pa.), the committee's chairman, joked about the number of cameras present before swearing Alito in for his testimony — close to 50, by his count, exceeding the 28 present for the recent confirmation hearings of Chief Justice John Roberts. As Alito lifted his right hand to swear to tell the truth, the whir of camera shutters clicking drowned out even the amplified sound of Specter's voice.
Many of the committee's minority Democrats — and some of its majority Republicans — emphasized the importance of the crucial slot Alito is slated to fill.
“You very well could be a key and decisive vote. And so, during these hearings, I think it's fair for us to try to determine whether your legal reasoning is within the mainstream of legal thought,” said Sen. Dianne Feinstein (D-Calif.). Feinstein is a strong abortion-rights advocate.
Specter, an abortion-rights supporter, noted the importance of the nomination — but downplayed the likelihood that Alito could be a decisive vote on abortion.
“There is, I think, a heavy sense of drama as these hearings begin,” Specter noted in his opening statement. While many have determined from Alito's past writings on abortion rights — particularly comments he made in a 1985 job application for a position in the Reagan administration — that he would vote to overturn Roe once on the Supreme Court, Specter said such assumptions were hasty.
“The history of the court is full of surprises on the issue,” he said — noting that O'Connor and other previous appointees were cast as abortion-rights opponents at the time of their nomination. O'Connor ended up voting, repeatedly, to uphold the heart of Roe.
Alito's respect for judicial precedent means he would likely do the same, Specter said.
“This hearing will give Judge Alito the public forum to address the issue as he has with senators in private meetings — that his personal issues and prior advocacy will not determine his judicial position.” Specter said. “But, instead, he will weigh factors such as” his commitment to not upsetting a judicial precedent that many Americans have come to rely on in the nearly 33 years since Roe was handed down.
But more conservative Republican senators seemed satisfied that Alito hewed to their anti-abortion views.
“Some say you have to follow precedent,” Sen. Jeff Sessions (R-Ala.) told Alito. Sessions said judges take oaths “not to decide whether a procedure is good policy or not — that's the job of the legislative branch.
Alluding to Specter's previously expressed theory that Roe has become a “super-duper precedent” because the high court has repeatedly upheld it, Sessions added: “It's not an oath to uphold a precedent, whether that precedent is super-duper or not.”
Sen. Charles Schumer (D-N.J.) promised to ask Alito directly whether he still holds to the view that he expressed in the 1985 job application — that he “personally believe[s] very strongly” that “the Constitution does not protect a right to an abortion.”
“We will ask: Do you view elevation to the Supreme Court — where you will no longer be bound by high court precedent — as the long-sought 'opportunity to advance the goals of bringing about the eventual overturning of Roe v. Wade,' as you stated in 1985?” Schumer told the nominee.
Senators focused some on other issues important to people of faith, including religious freedom, in their opening statements. Sen. John Cornyn (R-Texas) noted a 2000 case from his home state in which the Supreme Court ruled a school district's practice of coordinating student-led prayers before football games was unconstitutional. Cornyn told Alito he hoped the judge would rule differently in such cases. “It is clear from your record that you understand that our Founding Fathers intended neutrality — not hostility — towards religion,” Cornyn said.
Shortly after that, Sen. Dick Durbin (D-Ill.) told the nominee he hoped he would instead vote to uphold the separation of church and state. “There was real wisdom in the decision of our forefathers in writing the Constitution that gave us the opportunity to grow as such a diverse nation — and we should never forget it,” he said. “These decisions are the legacy of justices who chose to expand the tradition of American freedom.”
For his part, Alito sat impassively for most of the hearing, essentially expressionless when being addressed by senators. His brief opening statement consisted mainly of a short autobiography and thanks to the parents and mentors who helped him get where he is today.
He noted the change he experienced when he moved from being an attorney to being an appellate judge in 1990.
“The role of a practicing attorney is to achieve a desirable result of a client with the case at hand. But a judge can't think that way — a judge can't have an agenda; a judge can't have a preferred outcome in a particular case,” he said. “A judge has an obligation — and it's a solemn obligation to the rule of law.”