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Alito: 'Open Mind' On Abortion

U.S. Supreme Court nominee Judge Samuel Alito answers questions from senators on the Senate Judiciary Committee during the second day of his confirmation hearings January 10, 2006 on Capitol Hill in Washington, DC.
Getty Images/Joe Raedle
Supreme Court nominee Samuel Alito said Tuesday that he would deal with the issue of abortion with an open mind as a justice, though he defended his 1991 judicial vote saying women seeking abortions must notify their husbands.

On the second day of his Senate confirmation hearings, Alito also answered questions on a hot topic in Washington: the limits of presidential power. He said no president or court is above the law — even in a time of war.

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 without warrants.

Mr. Bush's choice for the high court told the Senate Judiciary Committee that his Reagan-era writings opposing abortion reflected an attorney representing a client's interests and, if confirmed and faced with an abortion case,

The conservative jurist gave no indication how he would vote if faced with the question of whether to overturn the Supreme Court's 1973 Roe v. Wade decision establishing a woman's right to an abortion. Webcast of the Alito hearings.

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 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."

CBS News legal analyst Andrew Cohen says there have been no major shocks so far.

Cohen said that while Alito "is not nearly as polished as John Roberts was when he appeared before these same senators," he has "kept his cool so far, has not appeared defensive or argumentative, and I think is doing about as well as his supporters could have hoped for. So it's a good start for him and the Republicans."

Mr. Bush's pick to replace retiring Justice Sandra Day O'Connor said 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.