January 12, 2006

Alito Resists Making Comparisons to O'Connor
By DAVID STOUT
WASHINGTON, Jan. 12 - Judge Samuel A. Alito Jr. refused today to compare himself to the justice he would replace on the Supreme Court, Sandra Day O'Connor, as Democratic opposition to the nominee seemed to harden.
"I think we all have to be who we are," Judge Alito told the Senate Judiciary Committee, whose Democratic members complained anew that he had not been forthcoming enough during his confirmation hearings.
Judge Alito said he believed Justice O'Connor would be remembered "with great admiration." But he declined to say whether he agreed with her ringing dissent in one of the court's most important cases last year, in which the majority held, 5 to 4, that the government could use its power of eminent domain to take private property to promote economic development.
"It touches some very sensitive nerves," Judge Alito said of the property case, which arose from a dispute in New London, Conn. "When someone's home is being taken away using the power of eminent domain, that is, that is a blow to a lot of people, even if they're going to get compensated at fair market values for their home."
That answer seemed to disappoint the questioner, Senator Herb Kohl, Democrat of Wisconsin, who described the reply as "on the one hand and on the other hand."
"I'd ask you," the senator persisted, "if you would, venture an opinion more precisely, specifically - do you agree in general with Justice O'Connor's dissent?"
"Well, senator," Judge Alito said, "I don't think I can answer that beyond what I've said."
Minutes earlier, Senator Kohl had signaled impatience with Judge Alito for his failure, in the senator's view, to answer directly on how he felt about the possibility of age or term limits for federal judges. "This is the only time - today may be the last time that we ever have a chance as a nation to talk to you," Mr. Kohl said. "So you have a thought on it. I mean, I can't believe you don't have a thought."
The committee's ranking Democrat, Senator Patrick J. Leahy of Vermont, also expressed disappointment and skepticism in the responses of Judge Alito, who sits on the United States Court of Appeals for the Third Circuit, in Philadelphia.
"I continue to be worried," Mr. Leahy said in a recess. "I pressed the questions again today as I have all week long. He is not clear that he would serve to protect America's fundamental rights. Americans have to look to the Supreme Court to protect their rights."
"When people want to take away our rights of the courts, when politicians, in pandering to whatever special interest group it is, want to take away our rights of the court, I would assume somebody who's going on the Supreme Court would say you can't do that," Mr. Leahy went on. "We could not get that clear answer today."
The dissatisfaction voiced by Senators Kohl and Leahy could be significant, since they voted in favor of the nomination of Judge John G. Roberts Jr. to be chief justice, and their comments today indicated that, in their eyes at least, Judge Alito suffers by comparison with the earlier nominee.
The tone of the hearings, which are nearing conclusion, could preview a straight party-line committee vote on the nominee, with all 10 Republicans voting in favor and all 8 Democrats voting against, although Senator Arlen Specter, Republican of Pennsylvania, has not committed himself.
Judge Roberts, by contrast, was endorsed by the committee, 13 to 5. (Senator Russell D. Feingold of Wisconsin was the third Democrat to support Judge Roberts.)
Since there are 55 Republicans in the Senate, Judge Alito would still appear to have an excellent chance at confirmation, if by a less decisive margin than the 78-to-22 vote that elevated Judge Roberts.

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