WASHINGTON — Supreme Court nominee Samuel Alito today called the issue of regulating online pornography to protect children "a difficult problem."
In the second day of hearings before the Senate Judiciary Committee, Sen. Mike DeWine, R-Ohio, noted two attempts by Congress to restrict the availability of pornography on the Internet — the Communications Decency Act and the Child Online Protection Act — only to see the Supreme Court strike both down, "citing the First Amendment."
"What bothers me about these cases," DeWine said, "is they fail to account for something that to me seems relatively simple: The core of the First Amendment is the protection of political speech, but it seems to me that pornography is altogether different. Unlike political speech, pornography has little value, if it has any value at all."
Alito replied that as courts try to apply constitutional principles, "when the world changes and, in particular, when, in the First Amendment context, when means of communication changes, the job of applying the principles that have been worked out ... in the pre-Internet world — applying those to the world of the Internet is a really difficult problem."
He added, "I understand that Congress has been struggling with it. And I know the judiciary has been struggling with it."
Alito said "constitutional law draws a distinction between obscenity, which has no First Amendment protection but is subject to a very strict definition, and pornography, which is not obscenity but is sexually related materials. With respect to minors, the Supreme Court has said it's permissible for a state to regulate the sale of pornography to minors.
The 3rd U.S. Circuit Court of Appeals judge observed that it was easier for parents to monitor their children's access to pornographic materials before the Internet.
"I can't say much more about the question than that," he said. "It is a difficult question. I think that there needs to be additional effort in this area, probably by all branches of government, so that the law fully takes into account the differences regarding communication over the Internet and access to materials over the Internet by minors."
Earlier today, Alito was pressed on issues including privacy, abortion, executive powers and court precedent.
The nominee said he believed the Constitution protected a right to privacy. He said he would deal with the abortion issue with an open mind as a justice, though he defended his 1991 judicial vote saying women seeking abortions must notify their husbands.
Alito also said no president or court was above the law — even in time of war — as he addressed questions on presidential powers. The issue has been at the forefront since the revelation that President Bush had secretly ordered the National Security Agency to conduct wiretaps of Americans in the terror war.
The Constitution is a living thing, Alito said, in the sense that it sets up a framework of government and protects fundamental rights. He said the fact that it isn't specific on certain things allows each generation to apply the general principles it sets out to particular situations.
The federal judge also faced tough questions about his decisions during 15 years on an appeals court, his writings on wiretaps and his membership in a college organization opposed to the admission of women and minorities.
Bush's choice for the high court said his Reagan-era writings opposing abortion reflected an attorney representing a client's interests and, if confirmed and faced with an abortion case, "I would approach the question with an open mind."
The judge defended his dissent in the 1991 case of Casey v. Planned Parenthood, in which the 3rd U.S. Circuit Court of Appeals struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses.
The Supreme Court also rejected the spousal notification, but Chief Justice William Rehnquist quoted from Alito's opinion in his own dissent. The high court, on a 5-4 vote, upheld a woman's right to the procedure but was divided on other elements of the case.
Alito told the Senate Judiciary Committee: "I did it because that's what I thought the law required."
In a 1985 memo as an official of the Reagan administration, Alito described a legal strategy for chipping away at abortion rights. Questioned about the document, he told the committee, "That was a statement that I made at a prior period of time when I was performing a different role and, as I said yesterday, when someone becomes a judge you really have to put aside the things you did as a lawyer at prior points in your legal career."
Bush's pick to replace retiring Justice Sandra Day O'Connor told the Judiciary Committee that courts in general should follow their earlier decisions and avoid being moved by public opinion on controversial issues.
"The legitimacy of the court is undermined if it makes its decision based on public perception," Alito said.
Alito, who has been criticized by opponents for advocating broad presidential powers, said he did not believe war allowed the president to bypass the Constitution.
"No person is above the law, and that means the president and that means the Supreme Court," the judge said.
Committee Chairman Arlen Specter, R-Pa., started the hearing by questioning Alito about abortion and privacy rights, divisive issues that loom large as the Senate decides whether to confirm the conservative jurist.
Alito told the panel that he agrees "with the underlying thought that when a precedent is reaffirmed, that strengthens the precedent."
Alito said he didn't believe in the idea of a super precedent — or, he added, in a moment of levity, "super-duper" precedents, either.
O'Connor, whom Alito would replace, wrote in 2004 that "a state of war is not a blank check for the president when it comes to the rights of the nation's citizens." Specter asked Alito his view on her comments, and Alito said he endorsed them.
"It's a very important principle," Alito said. "Our Constitution applies in times of peace and in times of war. And it protects American citizens in all circumstances."
Alito didn't answer directly when Specter asked about whether the November 2001 act of Congress authorizing use of force against terrorists responsible for the Sept. 11 terrorist attacks gave the president the authority to order warrantless wiretaps, as the administration contends.
"These questions are obviously very difficult and important ... and likely to arise in litigation even before my own court or before the Supreme Court," he said.
Like Chief Justice John Roberts at his confirmation hearings in September, Alito repeatedly explained his writings as a lawyer in Republican Justice Departments as examples of an attorney representing a client.
In a 1984 memo, Alito suggested that the attorney general should be immune from lawsuits when acting to protect national security — even if it included illegal wiretapping of U.S. citizens. At issue was a lawsuit against President Nixon's attorney general, John Mitchell.
Alito said he believed the case could be made for such immunity. Asked if he believes now that an attorney general should be immune from civil liability, Alito said, "No, he would not. That was settled in that case."
In a 1985 application for a job in the Reagan Justice Department, Alito cited his membership in the Concerned Alumni of Princeton, a conservative alumni group known for its opposition to opening the school to women and bringing in more minorities.
"I have no specific recollection of that organization," Alito told the panel. The Princeton graduate said he was not actively involved in the conservative organization.
Asked if he opposed the admission of women and minorities in colleges, Alito said, "Absolutely not," and added, "I had never attended a non-coeducational school until I went to Princeton and after I was there a short time I realized the benefits of attending a coeducational school."
On other issues:
Alito pledged in 1990 that he would recuse himself from cases involving the Vanguard companies. Some Alito opponents say his participation in a 2002 Vanguard case raises doubts about his fitness for the Supreme Court. Alito holds six-figure investments with Vanguard.
"If I had to do it over again there are things that I would do differently," said Alito, although he also said he did nothing wrong.
He defended his 2004 dissent in which he supported the strip search of a 10-year-old girl, explaining that his interpretation was based on "common sense" that a warrant included searches of anyone on the premises of a drug suspect.
Alito acknowledged an example of precedent evolving into accepted practice, and a justice changing his opinion. Specter noted that Rehnquist had initially opposed the familiar Miranda warning used by police and then later supported the required statement, which begins, "You have the right to remain silent. ..."
"In that instance, police departments had adapted to the Miranda rule, had become comfortable with it ... began to regard it as a good way of dealing with a difficult problem," Alito said.
Alito distanced himself from several positions of Robert Bork, the conservative whose Supreme Court nomination failed in 1987. In a 1988 television interview, Alito called Bork "one of the most outstanding nominees of this century."
Questioned about Bork's statements on abortion and executive power — and whether he concurred — Alito said, "I was an appointee in the Reagan administration and Judge Bork had been a nominee of the administration and I had been a supporter of the nomination." He added that he didn't agree with Bork on a number of issues.
Asked repeatedly about whether the Supreme Court should have decided Bush v. Gore, the case that settled the 2000 election, Alito declined to answer, saying he hadn't studied the case.