Watch CBSN Live

Alito: 'Open Mind' On Abortion

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.

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.

Sen. Edward Kennedy, D-Mass., told Alito that his judicial opinions suggest otherwise.

"You give enormous, almost total deference to the exercise of executive power," Kennedy 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 doesn't believe in the idea of a super precedent or, he added in a moment of levity, "super-duper" precedents.

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 warrant-less 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."

Alito was also pressed about a 1985 application for a job in the Reagan Justice Department in which he listed his membership in the Concerned Alumni of Princeton, a conservative group known for its opposition to opening the school to women and bringing in more minorities.

Alito said he has "no specific recollection of that organization" and wasn't actively involved in it.

Asked by Republican Sen. Orrin Hatch if he's against women and minorities attending college, Alito said, "Absolutely not." He 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."