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Friday, January 13, 2006

Maryland Sets a Health Cost for Wal-Mart - New York Times

Maryland Sets a Health Cost for Wal-Mart - New York TimesJanuary 13, 2006
Maryland Sets a Health Cost for Wal-Mart
By MICHAEL BARBARO

ANNAPOLIS, Md., Jan. 12 - The Maryland legislature passed a law Thursday that would require Wal-Mart Stores to increase spending on employee health insurance, a measure that is expected to be a model for other states.

The legislature's move, which overrode a veto by Gov. Robert L. Ehrlich, was a response to growing criticism that Wal-Mart, the nation's largest private employer, has skimped on benefits and shifted health costs to state governments.

The vote came after a furious lobbying battle by Wal-Mart and by labor and liberal groups, and is likely to encourage lawmakers in dozens of other states who are considering similar legislation.

Many state legislatures have looked to Maryland as a test case, as they face fast-rising Medicaid costs, and Wal-Mart's critics say that too many of its employees have been forced to turn to Medicaid.

Under the Maryland law, employers with 10,000 or more workers in the state must spend at least 8 percent of their payrolls on health insurance, or else pay the difference into a state Medicaid fund.

A Wal-Mart spokeswoman said the company was "weighing its options," including a lawsuit to challenge the law because it is close to that 8 percent threshold already.

It is unclear how much the new law will cost Wal-Mart in Maryland - or around the country, if similar laws are adopted, because Wal-Mart has not publicly divulged what it spends on health care.

But it was concerned enough about the bill to hire four firms to lobby the legislature intensely over the last two months, and contributed at least $4,000 to the re-election campaign of Governor Ehrlich.

A spokeswoman for Wal-Mart, Mia Masten, said that "everyone should have access to affordable health insurance, but this legislation does nothing to accomplish this goal."

"This is about partisan politics," she said, "and this is poor public policy driven by special-interest groups."

There are four employers in Maryland with more than 10,000 workers - among them, Johns Hopkins University, the grocery chain Giant Food and the military contractor Northrop Grumman, but only Wal-Mart falls below the 8 percent threshold on health care spending.

A Democratic lawmaker who sponsored the legislation, State Senator Gloria G. Lawlah , maintained: "This is not a Wal-Mart bill, it's a Medicaid bill." This bill says to the conglomerates, 'Don't dump the employees that you refuse to insure into our Medicaid systems.' "

Opponents said the law would open the door for broader state regulation of health care spending by private companies and would send the message that Maryland is antibusiness.

"The message is, 'Don't come here,' " said Senator E. J. Pipkin, a Republican. "This is an anti-jobs bill."

Several lawmakers said that in the end, the law would require Wal-Mart to spend only slightly more than it does now on health insurance. But with Wal-Mart refusing to disclose what it pays for health costs, it was unclear how much more it would be required to pay.

This is the second time that the Maryland legislature, which is dominated by Democrats, has passed the Wal-Mart bill. Governor Ehrlich vetoed it late last year, inviting a senior Wal-Mart executive to sit by his side as he did so.

Indeed, the bill is shaping up as an issue in the fall campaign, with Republicans and their business allies lining up against it, and Democrats and their labor union supporters backing it. Wal-Mart has 53 stores and employs about 17,000 people in Maryland.

Debate was particularly emotional among representatives from Maryland's Eastern Shore, where Wal-Mart recently announced plans to build a distribution center that would employ up to 1,000.

Wal-Mart executives have strongly suggested that they might build the center elsewhere if lawmakers passed the health care bill.

In a passionate speech in the State Senate, J. Lowell Stoltzfus, a Republican, warned that the bill "jeopardizes good employment for my people."

"It's going to hurt us very bad," he added,

The bill's passage underscored the success of the union campaign to turn Wal-Mart into a symbol of what is wrong in the American health care system.

Wal-Mart has come under severe criticism because it insures less than half its United States work force and because its employees routinely show up, in larger numbers than employees of other retailers, on state Medicaid rolls.

In response to the complaints, the company introduced a new health care plan late last year, with premiums as low as $11 a month.

Consumer advocates specializing in health care are hoping that the Maryland law will be the first of many.

"You're going to see similar legislation being introduced," said Ronald Pollack, executive director of Families USA, a nonprofit health advocacy organization, "and debated in at least three dozen more states, and at least some of those states will end up also requiring large employers to provide health care coverage."

Mr. Pollack suggested that he did not expect any groundswell of opposition from corporate America. Most companies, he said, provide insurance and know that the costs of medical treatment for uninsured people are reflected in their insurance premiums. Mr. Pollack said that, by his organization's calculations, the cost of such treatment drove up employer premiums by $922 a family last year. In 2006, he said, the added cost could reach $1,000 a family.

"Those employers should welcome the fact that the companies that do not offer coverage now will be forced to step up to the plate," he said.

State lawmakers here in Annapolis took repeated swipes at Wal-Mart during debate over the bill on Thursday. It appeared that the company's intensive lobbying campaign in Maryland, including advertisements arguing that the requirement would hurt small businesses, might have soured some lawmakers.

Senator Lawlah called the lobbying "horrendous" and adding, "I have never seen anything like it."

Frank D. Boston III, the chief lobbyist for Wal-Mart on the health care bill, stood in the main corridor of the Capitol building on Thursday wearing a look of resignation. Referring to unions in the state, he said, "They have a power we can't match, and we worked this bill extremely hard."

Class-Action Case in Pennsylvania

By Bloomberg News

A Pennsylvania judge granted class-action status yesterday to a lawsuit contending that Wal-Mart employees had been pressed to work through breaks and after hours.

The suit could include as many as 150,000 current or former employees in Pennsylvania who have worked at a Wal-Mart store or at the company's Sam's Club warehouse chain since March 1998, Michael Donovan, the lead plaintiff's lawyer, said.

The latest class-action filing against Wal-Mart came after a California jury last month awarded workers $172.3 million in another off-the-clock case.

Wal-Mart is appealing. The company settled a similar case in Colorado for $50 million.

Wal-Mart has given "every indication" that it will go to trial rather than settle, Mr. Donovan said. A Wal-Mart spokesman, Kevin Thornton, said the company was considering appealing the decision.

Claudia H. Deutsch contributed reporting from New York for this article.

Iran Threatens to Prevent Inspections of Nuclear Facilities - New York Times

Iran Threatens to Prevent Inspections of Nuclear Facilities - New York TimesJanuary 13, 2006
Iran Threatens to Prevent Inspections of Nuclear Facilities
By RICHARD BERNSTEIN and JOHN O'NEIL

BERLIN, Jan. 13 - Iran's foreign minister today threatened to limit its cooperation with international atomic inspectors, in an angry reaction to the European decision Thursday to demand that Iran be referred to the United Nations Security Council for possible sanctions.

Manouchehr Mottaki, the foreign minister, said that a referral would force Iran to "end all voluntary measures" of cooperation with the International Atomic Energy Agency.

"Europeans will lose all other options currently in their possession at talks with Tehran," Mr. Mottaki said, according to news agencies.

Reuters also reported that a leading Iranian cleric, Ahmad Khatami, said in a sermon today that the country would resist a "psychological war" waged by the West.

"This nation is not a nation to yield to such pressures," Mr. Khatami told a crowd of worshippers at Tehran University, Reuters said. "The Europeans should avoid the language of threat. Using this language against the great Iranian nation is useless."

Foreign ministers of Britain, France and Germany declared Thursday at a news conference in Berlin that three years of talks with Iran over its nuclear program had come to a "dead end," in the words of Frank-Walter Steinmeier of Germany.

Shortly afterward, in an apparently orchestrated response, Secretary of State Condoleezza Rice declared in Washington that the United States fully supported the European action. Iran's actions, she said, "have shattered the basis for negotiation."

With plans for the three European countries to hold an emergency meeting Monday with the United States, Russia and China, the long-simmering Iranian dispute is moving quickly to a boil.

The European countries opened talks with Iran in 2002 after a secret nuclear program was discovered. Iran admitted in 2003 that it had deceived international inspectors but insisted that its program was for peaceful purposes only. Nevertheless, it suspended the program as talks continued.

Since the election of a more conservative government in August, Iran has taken a harder line. The current conflict was sparked by its decision to resume nuclear research, including work with the centrifuges used to enrich uranium.

Despite the new resolve by the Americans and Europeans, and very probably by Russia and China, on getting Iran to reverse course in the nuclear area, many experts and diplomats say the process of actually coercing that step could take a long time and may never work.

Iran is believed to be years away from making bombs but only a year or two from having the expertise to do so. For its part, the Iranian government says it is only doing what it is allowed to do under the Nuclear Non-Proliferation Treaty. "Iran does not need any country's permission," said Mr. Mottaki today. "It is our legitimate right to have nuclear technology."

The pullback in cooperation Mr. Mottaki threatened today refers to a voluntary agreement Iran entered into after the disclosures about its hidden program. Under the agreement, nuclear inspectors had the right to conduct snap inspections.

But last fall, as tensions began to rise, Iran's Parliament passed a law declaring that the snap inspections would be ended if the dispute were sent to the Security Council. "The government must cease all voluntary measures of cooperation under the law," he said.

The new round of research is being conducted with cameras from the International Atomic Energy Commission in place.

Mr. Mottaki said that the Europeans "should recognize Iran's right to do nuclear research for peaceful purposes."

In return, he said, "Tehran will have to provide clear explanations on its nuclear program and ease Europe's concerns."

That formulation is unlikely to stop the push by Europe and the United States to block the program. Officials in these countries are worried not only about the production of enriched uranium, but about research that would give Iran the ability to conduct enrichment, since the difference between producing reactor-grade uranium and weapons-grade uranium involves only the scale of the effort.

Many Western experts say that Tehran appears determined to press ahead even if sanctions are imposed and the country becomes isolated diplomatically. There is no sign that leading nations are ready to cut off oil purchases, because such a step would send oil prices rocketing, possibly damaging the world economy.

American and European diplomats said, however, that several days of intense diplomacy had convinced them that Russia and China would join in a growing consensus that the International Atomic Energy Agency board, comprising 35 countries, should refer the matter of Iran to the Security Council, if only to register a nearly worldwide condemnation of the Tehran government.

A senior State Department official in Washington said that Russia had indicated that it would not oppose a referral at the board but that the West was trying to get Russia to go further and vote yes. On Thursday, Ms. Rice spoke about this matter to the Russian foreign minister, Sergey V. Lavrov, as she had done earlier in the week. Mr. Lavrov said in Moscow that Russia was putting a heavy premium on Iran's compliance with international regulations on nuclear development.

"Iran has removed the seals from a uranium enrichment plant and therefore urgent consultations are needed," Mr. Lavrov said, according to the Interfax news agency.

The senior State Department official said, "I'm not saying that Russia is in the yes column, but they're moving in that direction." If Russia abstains on a referral or even votes yes, American and European diplomats say, China will probably go along and there will be a greater chance for approval of an anti-Iran measure by India, Brazil and other so-called nonaligned members of the atomic energy agency board.

The move toward referral to the Security Council did not necessarily mean that the Council itself would impose penalties without giving negotiations still another chance to resolve the matter, several diplomats said. An initial action simply condemning Iran and calling on it to change its behavior, with the threat of punishment in the background, appeared the most probable step once the matter gets to the Council.

Statements by France and Germany today underscored the desire not to leave the impression that their countries were calling for punitive measures immediately.

"The question of sanctions is premature," said a spokesman for the French foreign ministry, according to Agence France-Presse. The spokesman added that it was necessary to proceed "step by step."

American officials had made similar remarks on Thursday.

"We've always said that going to the Security Council is not an end in itself and did not signal an end to negotiations," said Robert Joseph, under secretary of state for arms control and international security. "Going to the Council provides a menu of options that can be used to try to get Iran to reverse course."

The campaign to raise pressure on Iran involved telephone calls from Ms. Rice and her top aides and plans for an extraordinary meeting on Monday in London of senior envoys from the United States, Britain, France, Germany, China and Russia.

American officials said this meeting would be focused on a strategy for a resolution aimed at referring the matter to the Security Council, to be adopted at an emergency meeting of the International Atomic Energy Agency board as early as later this month. American and European officials said they were prepared to be flexible on both the timing of the resolution and its wording, to get a maximum number of countries on board.

There remained concern among some Western diplomats that while Russia and China seemed willing to abstain in a resolution of referral to the Security Council, they could demand delays or watered-down wording changes that would undercut the effort.

The possibility of more negotiations with Iran, perhaps soon, was raised again, however, by the United Nations secretary general, Kofi Annan, who said Thursday evening that he had spoken earlier in the day to Iran's chief nuclear negotiator, Ali Larijani, to head off a looming confrontation.

Iran was still interested in "serious and constructive negotiations," Mr. Annan said, adding that the only viable solution to the dispute with Iran was "a negotiated one."

But American and European diplomats saw little prospect of any talks with Iran soon, at least not unless Iran took major steps to back away from a confrontation, like returning to its suspension of the conversion of raw uranium into a gas, and the enrichment of that gas into a concentrated form that could eventually be used for nuclear fuel or a bomb.

For two years, the United States has repeatedly declared that after many instances of Iran failing to disclose its nuclear activities to international inspectors, its conduct should be subject to condemnation or sanctions at the Security Council. But until this week, the United States' major European allies have declined to endorse that step.

Only after allowing the Europeans to negotiate with Iran and to offer possible incentives for suspending its activities, and encouraging Russia to make a separate offer to operate a joint uranium enrichment program on Russian soil, has the United States brought these partners around to more overt pressure.

Richard Bernstein reported from Berlin for this article, Steven R. Weisman contributed reporting from Washington and John O'Neil from New York.

Few Glimmers of How Conservative Judge Alito Is - New York Times

Few Glimmers of How Conservative Judge Alito Is - New York TimesJanuary 13, 2006
News Analysis
Few Glimmers of How Conservative Judge Alito Is
By ADAM LIPTAK

WASHINGTON, Jan. 12 - In over 18 hours responding to some 700 questions at his Supreme Court confirmation hearings before the Senate Judiciary Committee, Judge Samuel A. Alito Jr. mostly described a methodical and incremental approach to the law rooted in no particular theory.

But to the extent Judge Alito claimed a judicial philosophy, it aligned him with the court's two most conservative members, Justices Antonin Scalia and Clarence Thomas.

Judge Alito completed his testimony Thursday amid substantial opposition from Democrats, who indicated they would not support him, but saw little chance of blocking his confirmation.

On one of the few occasions Judge Alito spoke about his general approach to the law, he embraced a mode of constitutional interpretation, originalism, often associated with Justices Scalia and Thomas.

"In interpreting the Constitution," Judge Alito said Wednesday, "I think we should look to the text of the Constitution, and we should look to the meaning that someone would have taken from the text of the Constitution at the time of its adoption."

Chief Justice John G. Roberts Jr., by contrast, described a more eclectic and dynamic approach to constitutional interpretation at his confirmation hearings in September. Justice Sandra Day O'Connor, whom Judge Alito will replace if he is confirmed, has also embraced a variety of approaches.

"Judge Alito sounded less amenable to constitutional evolution than Roberts," said Cass R. Sunstein, a law professor at the University of Chicago who studied Judge Alito's dissenting opinions at the request of Senator Edward M. Kennedy, Democrat of Massachusetts, but has taken no position on the nomination. "He is someone who is more likely to vote with Justice Scalia and Justice Thomas than Justice O'Connor."

On more specific constitutional issues, Judge Alito affirmed what Jack M. Balkin, a law professor at Yale, calls the modern catechism necessary for confirmation. Judge Alito said that Brown v. Board of Education, the 1954 school desegregation case, was correctly decided. He said the Constitution protected privacy in at least some aspects of procreation, endorsing two decisions giving constitutional protection to the use of contraceptives. And he said the principle of one person one vote is required by the Constitution.

Having agreed with those cases and propositions, though, Judge Alito largely drew the line at saying more, notably about abortion. He justified his approach by saying the first set of cases were unlikely to come before the Supreme Court and that other cases might well be revisited by it.

But he did provide some hints on an array of other issues. He rejected, for instance, the use of foreign legal materials in interpreting the Constitution. He said he had favored allowing cameras in the courtroom in his own court, the United States Court of Appeals for the Third Circuit, in Philadelphia.

On Thursday, he said he "can't think of a reason why" Congress could not outlaw employment discrimination against gay men and lesbians. And he said that a diverse student body was an important value in education.

It was the topics Judge Alito failed to discuss that concerned some scholars the most. Some questioned whether he had really drawn a principled line between the cases he viewed as finally settled, and so could discuss, and those he considered still to be in play.

Some of the cases and principles Judge Alito would discuss, said Vikram Amar, a professor at Hastings College of the Law in San Francisco, could "very easily come up over the next decade in the court, let alone the next three decades." Among the examples Mr. Amar gave were the use of foreign legal materials, a 1952 opinion on presidential power and diversity in education.

What Judge Alito would and would not discuss was telling, said Mark Tushnet, a law professor at Georgetown.

"You can infer from the areas in which he is willing to talk and not willing to talk," said Mr. Tushnet, who opposes Judge Alito's confirmation. "The only inference you can draw is that he doesn't agree with the abortion decisions."

Senator Joseph R. Biden Jr., Democrat of Delaware, asked Judge Alito on Thursday whether he shared the aggressive views of executive power discussed in a recent book by John Yoo, an architect and forceful advocate of the Bush administration's legal strategy in the aftermath of the Sept. 11 attacks. Judge Alito said he had not read the book, "The Powers of War and Peace: The Constitution and Foreign Affairs after 9/11." But some of Judge Alito's answers suggested that he would not take as hard a line as Professor Yoo, who now teaches law at the University of California, Berkeley.

Notably, Judge Alito endorsed a 1952 concurring opinion by Justice Robert H. Jackson rejecting President Harry S. Truman's assertion that he had the inherent constitutional authority to seize steel mills during the Korean War. The opinion, in Youngstown Sheet and Tube Company v. Sawyer, set out a three-part sliding scale for considering clashes between presidential power and Congressional authority.

The president's power is at its "lowest ebb," Justice Jackson wrote, when Congress has forbidden a particular action. The administration has conceded that its domestic surveillance program violated the terms of a 1978 law requiring court approval for some intelligence gathering, arguing that it had authority to conduct the surveillance without warrants under both the Constitution and a Sept. 18, 2001, Congressional authorization to use military force.

In an interview Thursday, Professor Yoo said the balancing called for by the Jackson concurrence did not apply to the surveillance program.

"The Jackson concurrence applies to domestic matters which are outside the theater of combat," he said. The surveillance program, by contrast, is partly international, he said, and the theater of combat after the Sept. 11 attacks encompasses the United States.

Noah Feldman, a law professor at New York University, said the differing interpretations of the applicability of the Jackson concurrence were significant.

"It's very striking," Professor Feldman said, "that both Judge Alito and Chief Justice Roberts said they would apply Justice Jackson's concurrence in the steel seizure case, because it reflects a view of presidential power that is not unbounded and is not the strongest version of the unitary executive theory. If you were truly to follow Youngstown, you can't embrace the strongest version of the unitary executive theory."

Judge Alito endorsed a version of the unitary executive theory in a 2000 speech to the Federalist Society, a conservative legal group. The theory can mean, in its weaker form, that the president has full authority over the executive branch. In its stronger form, the theory means that there are areas of executive power into which Congress and the courts are powerless to intrude.

Professor Yoo said that what he called "the robust version" of the theory could conclusively answer the legal controversy over the surveillance program. "If gathering intelligence about the enemy is executive, then it can't be taken away" by Congress or the courts, he said.

At the hearings, Judge Alito embraced the weaker version. For Judge Alito, said Douglas W. Kmiec, a law professor at Pepperdine who served in the Justice Department in the Reagan administration, the unitary executive theory "goes more to the direction of fully executive subordinates than any type of claim of executive supremacy, which Alito has rightly denied."

If anything, Professor Kmiec continued, Judge Alito "has an understanding of executive power that is so well within the mainstream that Alexander Hamilton might think it timid."

Judith Resnik, a law professor at Yale, disagreed.

"He's fabulous at tautology," Professor Resnik said of Judge Alito. "He says the president is not above the law. He says the president can only do what the Constitution allows him to do. But he doesn't say what the Constitution allows."

"One of the absolutely essential questions of American law at the moment is the ability of any human being to call the executive branch to account before the courts," she added, noting that Justice Sandra Day O'Connor had affirmed that principle in a 2004 opinion allowing an American citizen to challenge his detention by the military. "That possibility must be available. What we have not heard from Judge Alito is a commitment to that point of view."

Judge Alito did indicate that he would take a relatively deferential view of Congressional power. "I would certainly approach the question of determining whether an act of Congress is constitutional with a heavy presumption in favor of the constitutionality of what Congress has done," he said on Thursday.

In the end, Judge Alito drew the line in what he would discuss almost exactly where Chief Justice Roberts had in his confirmation hearings in September. The similarity of the two men's positions should not be surprising, Professor Yoo said, as they were both government lawyers when Edwin Meese III served in the White House and the Justice Department in the Reagan administration.

"It shows the fruition," Professor Yoo said, "of the Reagan-Meese approach of grooming young lawyers in the 1980's who could do well at hearings 20 years later."

Tuesday, January 10, 2006

Presidential Power Has Limits, Alito Tells Senators - New York Times

Presidential Power Has Limits, Alito Tells Senators - New York TimesJanuary 10, 2006
Presidential Power Has Limits, Alito Tells Senators
By DAVID STOUT

WASHINGTON, Jan. 10 - Judge Samuel A. Alito Jr. said today that he agreed with the principle that a president does not have "a blank check" in terms of power, especially during wartime.

"The Constitution applies in times of peace and war," President Bush's nominee to the Supreme Court said in the first round of questioning before the Senate Judiciary Committee. "The Bill of Rights applies at all times."

In the second day of hearings on his nomination to the United States Supreme Court, Judge Alito said preservation of individual rights is particularly important in wartime because that is when the temptation to abuse liberties in the name of national security is most dangerous.

Declaring that the Constitution "protects the rights of Americans in all circumstances," Judge Alito was addressing an issue that his critics have called very troubling: whether he would too easily embrace the concept of far-reaching executive power, as his critics say the judge's paper trail seems to indicate.

In agreeing that the president does not have "a blank check" in terms of power, even in wartime emergencies, Judge Alito embraced the language of the justice he would succeed, Sandra Day O'Connor, who so wrote in a decision that upheld the right of a prisoner held as an "enemy combatant" to use the courts to challenge the basis of his confinement.

The judge also testified that he would approach abortion-related cases with an open mind, that the Constitution is "a living thing in the sense that matters" in that its underlying principles do not change even as time and circumstances do, and that the views he espoused as a young lawyer in the administration of President Ronald Reagan - "a line attorney," as he put it - are by no means a preview of how he would rule as a justice.

"My general philosophy is that the judiciary has a very important role to play," Judge Alito said, adding that he saw it as "a limited role" that should never encroach on the duties of lawmakers.

Some of the sharpest questions about the limits of presidential power came from Senators Patrick J. Leahy of Vermont, the panel's ranking Democrat, and Edward M. Kennedy, Democrat of Massachusetts.

Mr. Leahy asked the nominee whether he agreed with President Bush's interpretation of the powers conferred on him by Congress after the attacks of Sept. 11, 2001, Judge Alito replied cautiously, asserting that "difficult and important and complex questions" attend the issue.

But, the nominee said: "No person in this country is above the law. That includes the president and the Supreme Court."

Mr. Leahy was probing the judge's views on the electronic surveillance undertaken by the National Security Agency in the aftermath of the Sept. 11 attacks. Apparently not satisfied with the nominee's replies, Mr. Leahy said half-jokingly, "Let's take an easy one." Could the president authorize someone to murder a person, the senator asked.

Of course not, Judge Alito said. "The president has to follow the Constitution and the laws," he said.

Judge Alito, who has sat on the United States Court of Appeals for the Third Circuit, in Philadelphia, for 15 years, said repeatedly that precedent in the law deserves great respect, and should be overturned only with great care. He was responding to questions from Senator Arlen Specter, the Pennsylvania Republican who heads the panel, who is an abortion-rights supporter and has expressed concerns that the Supreme Court might one day consider undoing its 1973 ruling that established a woman's right to choose.

Precedent is "not an inexorable command," but it deserves great respect, Judge Alito said. He was referring not just to abortion issues but to a defendant's protection against police interrogations, as set forth in the 1966 Miranda ruling.

Senator Kennedy was skeptical about the nominee's dedication to the rights of ordinary citizens. "Time and again, even in routine matters involving average Americans, you give enormous, almost total deference to the exercise of governmental power," Mr. Kennedy said, citing a case in which the judge upheld the validity of a warrant in which a 10-year-old girl was strip searched.

Judge Alito answered in a calm, precise tone. "Senator, I wasn't happy that a 10-year-old girl was searched," he said, emphasizing that he had felt compelled to rule as he did, on a highly technical issue, because he felt the law required him to do so.

A bit later, Senator Charles E. Grassley, Republican of Iowa, offered the nominee a chance to express himself. "Judge Alito, would you have any difficulty ruling against the executive branch of the federal government if it were to overstep its authority in the Constitution?" Mr. Grassley asked.

"I would not, Senator," the judge replied. "I would judge the cases as they come up."

Senator Herb Kohl, Democrat of Wisconsin, asked him if he still agreed that Judge Robert H. Bork, who was rejected by the Senate in 1987, was an outstanding nominee, as he wrote at the time. "He was and is an accomplished scholar," Judge Alito said of Judge Bork, emphasizing that he still does not agree with him on everything.

Judge Alito, who as a Reagan administration lawyer wrote that he disagreed with some of the Supreme Court rulings during the time of Chief Justice Earl Warren, indicated that he agreed with what was perhaps the most important decision of all: the 1954 ruling that outlawed public school segregation. The judge said that ruling corrected an erroneous interpretation of the Constitution's Equal Protection Clause that had persisted for more than a half-century.

Mr. Kohl was openly skeptical when the nominee said he could not say whether the Supreme Court was right to take the case of Bush v. Gore, in which it effectively handed the 2000 election to George Bush. "I really don't know," Judge Alito said, insisting that he had not studied the case as carefully as he would have if he had had to consider it.

"That was a huge case," Mr. Kohl said with a smile, adding that he found it hard to believe that the judge had not thought about the case a good deal.

Senator Joseph R. Biden Jr., Democrat of Delaware, told Judge Alito his nomination to succeed Justice O'Connor "goes beyond you."

"It goes to whether or not your taking her seat will alter the constitutional framework of this country by shifting the balance, 5 to 4, 4 to 5, one way or another," the senator said, alluding to Justice O'Connor's role as a swing vote over the years.

The early assessment of the nominee's performance was split along party lines.

Three of the committee's 10 Republicans commented during a recess that the nominee had acquitted himself well. "It's clear to me that he is willing to be very forthright, that he appears to view his role as a judge very seriously and totally different from his position as a lawyer, divorcing any of his own personal views," said Senator Jon Kyl of Arizona, who was joined by Senators Jeff Sessions of Alabama and John Cornyn of Texas.

But Senator Charles E. Schumer, a New York Democrat on the committee, disagreed. "I don't think we've heard anything from the nominee except statements that every nominee would make," Mr. Schumer said, adding that he hopes the judge will be more specific.

Senators Leahy and Kohl and Senator Russell D. Feingold, also of Wisconsin, were the three Democrats who voted for the nomination of Judge John G. Roberts Jr., who won the committee's approval by 13 to 5 on his way to easy confirmation as chief justice.

Senator Leahy seemed concerned today about Judge Alito's membership in the Concerned Alumni of Princeton University, an organization that the senator said had resisted the admission of women and members of minority groups to the elite Ivy League institution. The nominee cited his membership in the group when he was applying for a promotion in the Reagan administration in 1985.

"Why in heaven's name, judge?" Mr. Leahy asked, seemingly incredulous that a man with Judge Alito's immigrant heritage and working-class background could have belonged to such a group.

The judge said that he had never active in the group's activities and that he had belonged chiefly because he disagreed with campus hostility to the Reserve Officers Training Corps in that Vietnam War era.

That back and forth afforded Senator Orrin G. Hatch, Republican of Utah, a chance to serve up a friendly question. The senator asked the nominee whether he was against women and minority groups in college.

"Absolutely not, senator, no," the judge replied.

"Tough question, Orrin," Senator Leahy interjected with a chuckle. "Tough question."

"Good question, though," Mr. Hatch retorted.