Springfield Journal Register

January 12, 2006

Sen. Durbin fails to corner Alito on abortion issue


WASHINGTON - Sen. Dick Durbin, D-Ill., on Wednesday tried unsuccessfully to pin down U.S. Supreme Court nominee Samuel Alito on the issue of abortion rights.

Alito said he would respect the Supreme Court's 1973 ruling in Roe v. Wade as an important legal precedent. But he refused to call it "settled law" as Durbin repeatedly prodded him to do.

The Springfield Democrat had his turn to ask questions during the third day of Senate Judiciary Committee hearings on President Bush's latest Supreme Court nominee. Alito was nominated to replace retiring Justice Sandra Day O'Connor, a key swing vote.

While Alito had told the committee Tuesday he would keep an "open mind" if the abortion issue comes to him on the Supreme Court, Durbin said Alito's earlier writings suggest "a mind that sadly is closed in some areas."

Durbin said he was troubled that Alito refused to refute his statement in opposition to abortion that was included on his 1985 application for a job in the Justice Department.

If confirmed, Alito said he would respect legal precedent.

"Things I said in the 1985 memo were a true expression of my views at the time, from my vantage point as an attorney in the solicitor general's office," Alito said. "But that was 20 years ago, and a great deal has happened in case law since then."

However, Alito also noted that an abortion case is pending before the Supreme Court, and others are winding their way through the lower courts.

"So it's an issue that is involved in a considerable amount of litigation that is going on," he said.

Durbin asked Alito if he agreed with Chief Justice John Roberts, who has described Roe v. Wade as settled law.

"If 'settled' means it can't be re-examined, then that's one thing," Alito responded. "If 'settled' means that it is a precedent that's entitled the respect of stare decisis ... then it is a precedent that is protected and entitled to respect."

Stare decisis is a Latin term that refers to the courts' traditional deference to previous decisions in related cases.

Durbin's questioning drew some retorts from Sens. Orrin Hatch, R-Utah, and Tom Coburn, R-Okla. Hatch said Roberts' description of Roe v. Wade as settled law came during his confirmation hearings for the appeals court, not the Supreme Court, and that appeals court judges are bound by Supreme Court decisions.

In addition, Durbin criticized what he said was a pattern of Alito's court opinions in which he ruled for established institutions and against individuals, citing cases involving a black man convicted of murder by an all-white jury and coal miners' safety.