I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Thursday, December 08, 2005

The Alito Games

The way in which the Senate Judiciary Committee conducts confirmation hearings for Supreme Court nominees is just embarrassing, because the entire spectacle is predicated on a complete fiction which everyone knows is false -- namely, that the nominees need not state their views about the Court's most controversial cases because they should not pre-judge matters they are likely to rule on in the future.

Anyone who has ever been to law school has formulated an opinion, likely a strongly-held one, regarding the merits of Roe v. Wade. Indeed, most people, lawyers and non-lawyers alike, have such views. To permit people who have spent their entire careers at the highest levels of the federal judiciary and/or federal private practice to pretend that they have not yet formed opinions about these precedents is just ludicrous.

The rules which the Senate seems to be formulating for governing the Alito confirmation hearing appear to be even sillier and more false than usual -- and for reasons that are even more corrupt than usual. Everyone knows that Alito will vote to overturn Roe v. Wade. He has said so multiple times in his career, and even though he hasn't said so for a number of years (because his federal appellate judgeship precluded him from saying so), there is nothing in the last 15 years of jurisprudence which even remotely suggests that he has changed his mind about this. Indeed, the opposite is true.

What possible rationale is there for having these hearings without making Alito say whether he will overturn Roe? As usual, Judiciary Committee Chairman Arlen Specter is trying to stay in the exact middle and is consequently spewing murky puddles of incoherent nonsense:

Roberts managed to deflect several questions about his views on abortion and other topics -- sometimes to Specter's irritation -- but still won Senate confirmation comfortably on Sept. 29 after lawmakers in both parties hailed his mastery of constitutional issues. Republican and Democratic senators will be tougher on Alito, Specter said, in part because his two 1985 memos seem to state a vigorous and enthusiastic opposition to abortion rights and some forms of affirmative action programs.

Specter said he will ask Alito, "What assurances can you give to this committee -- and the American people and all the litigants that will come before your court -- that your personal views will not have any impact, any weight, on your judicial decisions?" The senator said, "His reception is going to depend upon how credible he is."

Specter is obviously proud of himself because he's going to ask this question, which he apparently think is really tough and piercing. But it's not; it's dumb and easy to answer. Alito is simply going to say what they all say - that his personal views on abortion are irrelevant to the judicial determination of whether the Constitution guarantees this right and/or whether stare decisis compels Roe to be affirmed. The question which Specter is vowing to ask -- as though it's a reflection of how probing Alito's hearing will be -- is nothing new and nothing special and will achieve nothing.

The anti-Roe memos which Alito wrote were not ones which expressed his "personal views" about abortion. They expressed his legal view that Roe was wrongly decided and ought to be overturned. The question which Alito should be compelled to answer is whether that is still his view or whether he has changed his mind. In light of those memos, he cannot possibly claim that he won't answer because he does not want to pre-judge Roe. He already has, so the only question worth asking is whether he's changed his mind. If he is allowed to get away with not answering that question, the absurdity of these hearings will have sunk to a new low.

But Alito probably won't have to answer that question for this reason: Senate Democrats don't really want Alito to have to answer this question. That's because, for some indiscernible reason, they clearly don't have the stomach to filibuster Alito's nomination:

Democrats have not ruled out a filibuster against Alito, but Senate Minority Leader Harry M. Reid's aides generally avoid mentioning the word. A filibuster would prevent a confirmation vote unless the nominee's supporters mustered 60 votes to end debate. Republicans hold 55 of the chamber's 100 seats. But chances of a filibuster appear "remote at this stage," Specter said, because "there is nothing they can point to" that suggests Alito is outside the judicial mainstream.

But that presents Democrats with a dilemma, because they cannot possibly allow a Supreme Court nominee to sail through and be confirmed after the nominee expressly vows to overturn Roe. So the spineless Senate Democrats are clearly hoping that Alito will be allowed to evade having to give his opinion on Roe so that Democrats can evade having to do what so many of them hate most -- fight for their beliefs.

Letting Alito avoid that question will work out perfectly for everyone -- Republicans will get their conservative Supreme Court justice and Democrats will once again get to avoid a difficult fight.

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