WASHINGTON — Supreme Court nominee Samuel Alito spoke at length about
religious liberties and gave qualified approval of news photography in
courtrooms during his third day of confirmation hearings today.
Answering questions from Sen. Sam Brownback, R-Kan., Alito discussed the
majority opinion he wrote for the 3rd U.S. Circuit Court of Appeals involving a
religious-holiday display at City Hall in Jersey City, N.J.
In the case, ACLU-NJ v.
Schundler, the 3rd Circuit ruled that the city's modified Nativity scene
including a menorah, a Christmas tree, Santa Claus, Frosty the Snowman, Kwanzaa
symbols and explanatory signs was constitutional. A challenge had claimed that
the display violated the establishment clause.
The decision was in line with Supreme Court decisions allowing similar
displays in cases in which retiring Justice Sandra Day O’Connor voted with the
Brownback said it appeared Alito believed that "there is room for these sorts
of displays in the public square."
Alito said the high court had "drawn some fairly fine lines," citing a
Pawtucket, R.I., display that was involved in Lynch v.
Donnelly (1984). "It was a display that was similar to the display in
Jersey City," Alito said. "It included both religious and secular symbols. And
they found that that was not a violation."
A 1999 Pittsburgh case, County of
Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter,
also involved a similar display, Alito said. "Judge (Marjorie O.) Rendell and I,
who were the judges in the majority on that case, said this is constitutional;
this is consistent with the establishment clause."
Brownback then asked about a free-exercise case, C.H.
v. Oliva (2000), in which a New Jersey teacher refused to display a
poster of Jesus a child had drawn to fulfill an assignment. The 3rd Circuit
affirmed the school district's contention that it could not lawfully display
such religious material. Alito dissented in the case.
"Justice O'Connor pointed out something that's very critical in this area,"
Alito said in explaining his dissent. "She said there is a big difference
between government speech endorsing religion and private religious speech. And
private religious speech can't be discriminated against. It has to be treated
equally with secular speech."
Cameras in court
Regarding cameras in court, Alito said he had argued — unsuccessfully — for
courtroom cameras while serving on the 3rd Circuit, but that televising U.S.
Supreme Court proceedings was "a little bit different."
Sen. Arlen Specter, R-Pa., an advocate for televising Supreme Court sessions,
asked Alito, "Why shouldn't the Supreme Court be open to the public with
"We had a debate within our court about whether we should allow television
cameras in our court room. And I argued that we should do it," Alito replied,
saying he thought televised proceedings would be "useful."
"The issue is a little bit different on the Supreme Court," Alito said. "And
it would be presumptuous for me to talk about it right now, particularly since,
I think, at least one of the justices (David Souter) has said that a television
camera would make its way into the Supreme Court room over his dead body. So I
wouldn't want to comment on it."
"I will keep an open mind, despite the position I took on the 3rd Circuit,"
he said, drawing laughter.
Earlier today, the nominee was aggressively questioned by Democrats on the
Senate Judiciary Committee who accused him of inconsistencies on issues ranging
from voting rights to ethics to his membership in a conservative
On the third day of confirmation hearings, Democrats also expressed
frustration as Alito described the landmark 1973 ruling legalizing abortion as
"an important precedent" but declined to echo Chief Justice John Roberts, who
has called it settled law.
Republicans on the panel dismissed the criticism and defended Alito,
President Bush's choice to replace Justice O'Connor, as a conservative jurist
with a solid 15-year record on the federal appeals court.
"Your critics are grasping at any straw to tarnish your record," said Sen.
Charles Grassley, R-Iowa.
"A number of us have been troubled by what we see as inconsistencies in some
of the answers," Sen. Pat Leahy of Vermont, the panel's ranking Democrat, told
Sen. Richard Durbin of Illinois cited Alito's testimony yesterday in which he
said he would have an open mind if faced with the question of abortion on the
Supreme Court. The senator said the nominee's writings and testimony suggested
otherwise, with "a mind that sadly is closed in some instances."
Chief Justice Roberts described Roe v. Wade, the 1973 abortion ruling,
as settled law at his confirmation hearings in 2003 for the appeals court and
"settled as precedent" in testimony at his Supreme Court confirmation hearings
last year. Alito said the ruling "is an important precedent of the Supreme
Court," but he declined Durbin's repeated prodding to use the term "settled
On the Republican side, Brownback of Kansas said some Supreme Court decisions
are indefensible and invite reconsideration. The Court, Brownback said, had
revisited some 200 cases for that very reason.
"Some precedents are undeserving of respect," he told Alito.
Leahy listed several concerns, among them Alito's comments on the principle
of one-man, one-vote and his inability to recall details about his membership —
which he listed on a Reagan administration job application — in a conservative
organization that opposed the admission of women and minorities at Princeton
University, Alito's alma mater.
Democrats also voiced concern about Alito's answers concerning whether he
told the 3rd Circuit that he should not be hearing cases involving
investment company Vanguard. He holds six-figure investments with Vanguard.
Alito promised the Judiciary
Committee at his 1990 confirmation hearing as an appellate judge that he
would remove himself from cases that presented a conflict of interest. He said
his participation in a 2002 Vanguard case was an oversight, although he also
said he didn't do anything wrong. The American Bar Association and his
supporters have accepted that explanation.
Sen. Edward Kennedy, D-Mass., suggested that Alito had added another
interpretation as to why he did not recuse himself in the Vanguard case. At
issue was whether Alito would avoid any conflict of interest during an "initial
period of service" as a judge.
Kennedy pressed him on whether that amounted to three years or five
years. Alito's participation in the case occurred 12 years into his service.
Alito said he has tried to go beyond the code of ethics, and he maintained
that his failure to recuse himself from the case was an oversight.
Alito again said he had no recollection of membership in the Concerned Alumni
of Princeton, the conservative group that he listed on a job application.
"If I had been involved actively in any way in the group, I'm sure that I
would remember," Alito said.
The questions about CAP led to a testy exchange between Kennedy and Specter.
Last month, Kennedy said, he sent a letter to Specter seeking a committee
subpoena for private documents of William A. Rusher, a founder of the group,
that Kennedy said might shed light on Alito's membership. Specter said he had
not received the letter and bristled at Kennedy's pledge to push repeatedly for
a committee vote on a subpoena.
"I will not have you run this committee," said Specter, who brushed aside
Later Specter said Rusher had been reached and had given his approval to give
the documents to the committee.
Specter also expressed irritation at Supreme Court decisions that he said had
undermined congressional authority, and he asked Alito whether it was
appropriate for the courts to declare laws unconstitutional because of Congress'
"method of reasoning."
"I think that Congress' ability to reason is fully equal to that of the
judiciary," Alito said.
Alito would replace O'Connor, the swing vote on issues such as abortion,
affirmative action and the death penalty during her 25 years on the Court.
Republicans complained that Democrats had already made up their minds about
"I do think that there are those who have already decided to vote against
your nomination and are looking for some reason to do so," said Sen. John
Cornyn, R-Texas. "And I think one of the reasons that they may claim is that
you've been nonresponsive." Cornyn said he saw nothing to derail Alito's
Republicans hold the majority in the Senate — 55-44 with one independent —
and Alito is expected to win confirmation to the high court when the Senate
votes later this month. The Democrats' only hope of scuttling the nomination
rests with defections among the GOP ranks and solid opposition among its own
Democrats sought to elicit Alito's personal views on a wide range of issues,
from executive authority to Supreme Court decisions on terror cases during
wartime. The judge often sidestepped such questions and instead provided
chapter-and-verse of what the justices had written or else cited constitutional
law. Alito did not stake out any new or controversial positions.