As day two of the interrogation of Supreme Court nominee Samuel Alito begins Wednesday, here’s what we have learned about him: he might vote to overturn the 1973 Roe v. Wade ruling that legalized abortion, or seek to whittle it back. But then again he respects Supreme Court precedents, so he might not move to overturn or cut back Roe.
Alito will not recant the statement he made in a 1985 job application to be deputy assistant attorney general that “the Constitution does not protect a right to an abortion.”
But he won’t say he still holds that belief either.
He simply won’t say either way. By day’s end Tuesday it looked like wild senatorial horses couldn’t drag an answer out of him.
Instead, Alito pledged to judge any future abortion case that implicates the Roe v Wade ruling in an open-minded, judicial way.
Dooming abortion rights?
After sparring with the nominee, Sen. Charles Schumer, D-N.Y., seemed quite sure that Alito would doom Roe.
“Your blanket 1985 statement, not distanced from, that the Constitution doesn't protect the right to an abortion, the fact that respect for precedent and stability doesn't prevent overruling of a past decision and your own record of reversing or ignoring precedent on the 3rd Circuit lead to one inevitable conclusion: We can only conclude that if the question came before you it is very likely that you would vote to overrule Roe v. Wade,” Schumer said.
But chairman Arlen Specter, R-Pa., who has proven to be stalwart supporter of Alito, and who supports Roe v. Wade, seemed to hear an entirely different answer from Alito: that like the late chief justice William Rehnquist in his ruling on the Miranda warning to criminal suspects, Alito endorses the idea that a controversial Supreme Court ruling can become “embedded in the culture of the country” and therefore ought not be overturned.
Kate Michelman, former head of the abortion rights group NARAL Pro-Choice America said “the issue is not whether Alito will overturn Roe v Wade, that’s a parlor game inside Washington….We all know Judge Alito outlined in detail a strategy that would take away reproductive rights without overturning Roe. We know that Roe can be left in place and women still denied their right to choose."
So in Michelman's view, "What we need to get at here is how Judge Alito could have believed that forcing women to notify their husbands before having an abortion was not an undue burden on women. That opinion treated women like little girls.”
Michelman — who will be a Democratic witness against Alito later this week — was referring to Alito’s dissent in the 1991 appeals court case, .
In his dissent Alito said he would have upheld the Pennsylvania law requiring pregnant women to tell their husbands before getting an abortion.
The law had an exception for a woman who had reason to believe that notifying her husband would lead to him hitting or physically abusing her.
Cautious and almost soporific
In his marathon day of fielding senators’ questions, Alito showed no “sharp edges.” He was detailed, cautious, and as Sen. Patrick Leahy, D–Vt., hinted at one point late in the afternoon, almost soporific.
After seeing the movie The Birth of a Nation in 1917, Woodrow Wilson described the then-new medium of motion pictures as “history written in lightning.” The "Sam Alito Story," if Hollywood ever makes such a movie, will not be “written with lightning.” It may be more like history written with gray crayon on gray paper.
At no point in the day was there any flash of lightning that illuminated Alito's beliefs or his soul.
This day of testimony had none of the drama of the hearings on conservative nominees Clarence Thomas in 1991 and Robert Bork in 1987. (The Senate confirmed Thomas, but rejected Bork.)
We did learn in the first day of Alito’s interrogation that Bork himself is still a contentious issue, at least for some senators. Back in 1988 Alito called Bork “one of the most outstanding nominees of this century.”
Schumer quoted Bork saying in 1985, “I don't think that in the field, of constitutional law, precedent is all that important.”
Wrong to back Bork?
If Alito supported Bork, Schumer argued, then he, too, might give precedent scant regard. And the precedent that mattered for Schumer was Roe v. Wade.
Bork went down to defeat in 1987 (when the Senate had 55 Democrats, not 45 as it does today).
Both Schumer and Sen. Herb Kohl, D-Wisc., gave Alito the chance to recant his endorsement of Bork. Alito chose not to do so. If support for Bork is a litmus test, Alito did not seem afraid of flunking it.
We also learned in day one of the interrogation that Alito regards eavesdropping on al Qaida contacts with U.S. citizens inside the United States as a “very difficult and important and complicated” question.
Questions on eavesdropping
The Bush administration has been conducting such eavesdropping without warrants from judges, which are usually required in such cases.
But we still do no know how Alito might decide a challenge to President Bush’s ordering of such surveillance if the issue comes to the Supreme Court.
“Those are weighty issues involving two of the most important considerations that can arise in constitutional law, the protection of the country and the protection of people's fundamental rights,” Alito told Sen. Russ Feingold D- Wisc., who pressed him on the issue. “I would have to know the specifics in the arguments that were made” in a case before making a decision.
He later told Sen. Lindsey Graham, R-S.C. that “the courts do not have expertise in foreign affairs or in military affairs…. That is one powerful consideration in addressing legal issues that may come up in this context.”
Yet he held out an olive branch to those worried about civil liberties, by telling Graham, “But there is the other powerful consideration that it is the responsibility of the courts to protect individual rights in cases that are properly before the court….”