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Alito Finds Constitutional Privacy Right, Durbin Says (Update2)

By Robert Schmidt

Nov. 2 (Bloomberg) -- Supreme Court nominee Samuel Alito Jr., meeting with lawmakers on Capitol Hill, told one senator that the U.S. Constitution guarantees a right to privacy and won praise from Democratic Senator Ben Nelson of Nebraska.

Senator Richard Durbin, an Illinois Democrat, said Alito told him in their meeting that he recognized a right to privacy, the principle that underlies the Supreme Court's abortion rights rulings. ``I think he believes in that fundamental right,'' Durbin told reporters in Washington. He added that Alito didn't say if he would apply it in abortion cases.

Earlier today, Nelson said he is reassured that Alito wouldn't be an activist. Both Nelson and Durbin said they want to learn more about Alito before deciding whether to support his nomination.

``At this point in time I have a comfort level that I'm satisfied with,'' Nelson said after his session with Alito. ``He assured me that he wants to go to the bench without a political agenda, that he is not bringing a hammer and chisel to hammer away and chisel away on existing law.''

Nelson is one of a small group of centrist Democrats who are being targeted by the White House to shore up support for Alito and avoid a filibuster that could block a vote on the nominee. Republicans, who hold 55 seats in the 100-member Senate, need five more votes to overcome the parliamentary tactic and shut off unlimited debate.

Replacing O'Connor

Bush named Alito, a 55-year-old federal appeals court judge from New Jersey, to replace retiring Justice Sandra Day O'Connor, a swing vote on the high court. The pick has been applauded by conservatives who opposed President George W. Bush's withdrawn nominee, White House counsel Harriet Miers. The choice of Alito sparked an outcry from liberals and many Democrats who say his judicial opinions show he is hostile to abortion rights and civil liberties.

Nelson is among the key group of senators known as the Gang of 14 who signed a bipartisan agreement this year that averted a legislative shutdown over use of the filibuster to block judicial nominees. The seven Democrats in the group forswore use of the filibuster except in ``extraordinary circumstances'' in return for a pledge from the seven Republicans not to join a move to eliminate the tactic altogether.

Preserving the Coalition

Speaking with reporters outside his office in Washington, Nelson said after his private meeting with Alito that it is too early to tell if the nomination would be deemed extraordinary by some and fracture the coalition. He said the group plans to meet tomorrow.

``We all want to avoid having the Gang of 14 called into service on this,'' he said.

Senator Lindsey Graham, a South Carolina Republican and Gang of 14 member, said he will tell the group tomorrow that it is unacceptable to filibuster a nominee solely over his judicial philosophy. If that happens, Graham said, ``it will be Mideast politics in the Senate.''

Meeting with Alito today, Graham said he warned the nominee to prepare his family for a bitter fight. ``He needs to get ready for some very unpleasant things to be said,'' Graham told reporters.

On abortion, Nelson expressed support for a dissenting opinion by Alito that said states can require a married woman to notify her husband before ending a pregnancy. As governor of Nebraska, Nelson said, he helped push legislation requiring a waiting period for women before an abortion and that minors get parental consent for the procedure.

Similar Approach

``I thought it was a legitimate effort by the state legislature, and, with my urging, to get those enhancements in place because I thought it was the role of the state to do so,'' Nelson said. ``It is pretty clear that judge Alito feels similarly.''

Durbin said Alito told him that the dissent ``was a tough decision'' to write.

``He spent more time worrying over, and working on, that dissent than any other'' opinion he ever wrote,'' Durbin said. ``I was glad to hear that.''

According to an analysis of polling data released today by the Pew Research Center for the People and the Press, Americans support spousal notification before abortions by almost 3-1. But those surveyed opposed overturning the 1973 Roe v. Wade ruling that established a right to abortion by more than a 2-1 margin, the Pew center said.

Rave Reviews

Alito drew rave reviews today after meeting with Republican Senators Chuck Hagel of Nebraska and Kay Bailey Hutchison of Texas. Hagel offered a full endorsement and Hutchison said she would vote to confirm Alito ``unless something very different comes out that we don't know about.''

Hutchison also urged the Senate Judiciary Committee to hold hearings on the nomination before Thanksgiving so the full Senate could vote on Alito shortly thereafter.

Vermont Senator Patrick Leahy, the senior Democrat on the Judiciary Committee, told reporters after meeting with Alito that the nomination was too important to rush through.

``I don't know how you would do a fair and honest hearing by the end of the year,'' he said.

Leahy said he told Alito that a ``major issue'' at his confirmation hearings will be why ``far right'' groups, whose outcry forced Bush to withdraw Miers's name for the seat, now ``strongly favor'' Alito.

To contact the reporter on this story: Robert Schmidt in Washington at rschmidt5@bloomberg.net.

Last Updated: November 2, 2005 18:11 EST

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