By DAVID D. KIRKPATRICK
Published: November 4, 2005
http://www.nytimes.com/2005/11/04/politics/politicsspecial1/04confirm.html
WASHINGTON, Nov. 3 - Senators of both parties said Thursday that Judge Samuel A. Alito Jr., President Bush's choice for the Supreme Court, had told them he believed the court might have gone too far in separating church and state.
Senator John Cornyn, a Texas Republican on the Judiciary Committee, said that Thursday in a private meeting Judge Alito expressed empathy for "the impression that the court's decisions were incoherent in this area of the law in a way that really gives the impression of hostility to religious speech and religious expression."
Senator Robert C. Byrd, Democrat of West Virginia, said after his own meeting with the judge that he, too, was "very satisfied" that Judge Alito had said he believed the court had erred by going too far in prohibiting government support for religion at the risk of hampering individual expression of religion.
"He indicated that people have a right, a very distinct right, to express their religious views," Mr. Byrd said.
Although the senators said Judge Alito had not told them how he would rule in specific cases, their comments were the first indication of his views concerning one of the most contentious issues before the court.
Many liberals and religious minorities view the court's jurisprudence on separation of church and state over the last 50 years as a bedrock principle of American life. But anger over the court's rulings against school prayer, government displays of the Ten Commandments and other public forms of religious expression also played a major role in the birth of a conservative Christian political movement.
The selection of Judge Alito, a conservative federal appeals court judge, has ignited passions on both sides of the aisle, in part because he would succeed Justice Sandra Day O'Connor, who provided the swing vote on abortion
rights and other issues.
The intensity is so high that some members of Congress and outside groups worry that the divide over Judge Alito could lead to a filibuster. The so-called Gang of 14 - seven Democrats and seven Republicans who banded together this year to avert such a shutdown of the nominations process - met Thursday and publicly proclaimed their agreement intact, at least for now.
Judge Alito's conversations about religion took place as People for the American Way, the well-financed liberal advocacy group, said it would begin running television commercials this weekend opposing his confirmation.
The organization is well known for its television advertisements, starring Gregory Peck, in opposition to the Supreme Court nomination of Judge Robert H. Bork. But it has never run commercials so soon after a selection.
The group's new advertisement attacks Judge Alito as a favorite of conservatives. "First the radical right vetoed Harriet Miers to replace Sandra Day O'Connor," the script reads. "Now Bush has named their handpicked candidate, Samuel Alito."
A White House spokesman, Steve Schmidt, said, "It is unfortunate that interest groups like People for the American Way that are far outside the mainstream of American politics are trying to degrade what should be a dignified process."
The leaders of the Senate Judiciary Committee on Thursday scheduled confirmation hearings for Jan. 9, bucking pressure from the White House to hold the hearings before Christmas.
Senator Arlen Specter, the Pennsylvania Republican who is chairman of the Judiciary Committee, said he believed the White House's timetable was "not, in my judgment, practical." Mr. Specter said the committee's staff needed time to digest the roughly 3,750 cases on which Judge Alito voted and 300 opinions he wrote.
As Judge Alito continues to pay courtesy calls to senators, the Gang of 14 has become a subject of intense speculation because of the possibility that Democrats might try to stop his confirmation with a filibuster. Republicans are threatening to overcome such a move by calling a majority vote to change the Senate rules, a move known as the "nuclear option." The 14 senators have pledged to block the rule change or to allow filibusters only in "extraordinary circumstances."
Two Republican members of the group, Senators Mike DeWine of Ohio and Lindsey Graham of South Carolina, have said that if Democrats stage a filibuster against Judge Alito's confirmation, they would support a rule change. But on Thursday, members of the group said they had not yet confronted such a possibility.
After the group's Thursday meeting, Senator Joseph I. Lieberman, Democrat of Connecticut, said "The gang of 14 stands by the agreement of the 14."
Senator Ken Salazar of Colorado, a Democratic member of the group, argued that the Bush administration had violated the spirit of the compromise by failing to consult with Senators before announcing the nomination.
"I have a sense that what will happen with this appointment is that we are going to see America be more divided than it ever has been," he said, "and part of that is because it wasn't the right kind of process."
Senator Lincoln Chafee of Rhode Island, a Republican member of the group and one of the handful in his party who support abortion rights, said after meeting with Judge Alito that he remained concerned about the judge's approach to that issue, to the scope of federal power under the Constitution, and to the "separation of church and state."
" 'Red flags' may be a little early, but concerns, caution flags," Mr. Chafee said.
Mr. Cornyn, a former Texas attorney general, said he and Judge Alito had discussed the Supreme Court case Santa Fe Independent School District v. Doe, which Mr. Cornyn argued in 2000 and lost. The court ruled that the Constitution did not allow student-led prayer before a public high school football game.
"He did commiserate with me a little bit," Mr. Cornyn said. "I hope that he will be able to give the United States Supreme Court's ruling some coherence, because frankly they are way out of step with what the founding fathers intended."
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