The New York Times summarizes some of Judge Alito’s views on the law.
Some commentators are complaining that Judge Samuel Alito Jr.’s confirmation hearings have not been exciting, but they must not have been paying attention. We learned that Judge Alito had once declared that Judge Robert Bork – whose Supreme Court nomination was defeated because of his legal extremism – “was one of the most outstanding nominees” of the 20th century. We heard Judge Alito refuse to call Roe v. Wade “settled law,” as Chief Justice John Roberts did at his confirmation hearings. And we learned that Judge Alito subscribes to troubling views about presidential power.
Those are just a few of the quiet bombshells that have dropped. In his deadpan bureaucrat’s voice, Judge Alito has said some truly disturbing things about his view of the law. In three days of testimony, he has given the American people reasons to be worried – and senators reasons to oppose his nomination. Among those reasons are the following:
EVIDENCE OF EXTREMISM Judge Alito’s extraordinary praise of Judge Bork is unsettling, given that Judge Bork’s radical legal views included rejecting the Supreme Court’s entire line of privacy cases, even its 1965 ruling striking down a state law banning sales of contraceptives. Judge Alito’s membership in Concerned Alumni of Princeton – a group whose offensive views about women, minorities and AIDS victims were discussed in greater detail at yesterday’s hearing – is also deeply troubling, as is his unconvincing claim not to remember joining it.
OPPOSITION TO ROE V. WADE In 1985, Judge Alito made it clear that he believed the Constitution does not protect abortion rights. He had many chances this week to say he had changed his mind, but he refused. When offered the chance to say that Roe is a “super-precedent,” entitled to special deference because it has been upheld so often, he refused that, too. As Charles Schumer, Democrat of New York, noted in particularly pointed questioning, since Judge Alito was willing to say that other doctrines, like one person one vote, are settled law, his unwillingness to say the same about Roe strongly suggests that he still believes what he believed in 1985.
SUPPORT FOR AN IMPERIAL PRESIDENCY Judge Alito has backed a controversial theory known as the “unitary executive,” and argued that the attorney general should be immune from lawsuits when he installs illegal wiretaps. Judge Alito backed away from one of his most extreme statements in this area – his assertion, in a 1985 job application, that he believed “very strongly” in “the supremacy of the elected branches of government.” But he left a disturbing impression that as a justice, he would undermine the Supreme Court’s critical role in putting a check on presidential excesses.
INSENSITIVITY TO ORDINARY AMERICANS’ RIGHTS Time and again, as a lawyer and a judge, the nominee has taken the side of big corporations against the “little guy,” supported employers against employees, and routinely rejected the claims of women, racial minorities and the disabled. The hearing shed new light on his especially troubling dissent from a ruling by two Reagan-appointed judges, who said that workers at a coal-processing site were covered by Mine Safety and Health Act protections.
DOUBTS ABOUT THE NOMINEE’S HONESTY Judge Alito’s explanation of his involvement with Concerned Alumni of Princeton is hard to believe. In a 1985 job application, he proudly pointed to his membership in the organization. Now he says he remembers nothing of it – except why he joined, which he insists had nothing to do with the group’s core concerns. His explanation for why he broke his promise to Congress to recuse himself in any case involving Vanguard companies is also unpersuasive. As for his repeated claims that his past statements on subjects like abortion and Judge Bork never represented his personal views or were intended to impress prospective employers – all that did was make us wonder why we should give any credence to what he says now.
The debate over Judge Alito is generally presented as one between Republicans and Democrats. But his testimony should trouble moderate Republicans, especially those who favor abortion rights or are concerned about presidential excesses. The hearings may be short on fireworks, but they have produced, through Judge Alito’s words, an array of reasons to be concerned about this nomination.
No one had any delusions that a Supreme Court nominee from an administration that views dissent as treason would be Oliver Wendell Holmes reborn, but when you get a tap-dancing routine around the definition of “settled law” that makes Clinton’s “it all depends on what ‘is’ is” look like outright candor, there have to be more people than just Democrats worried about what this man will do once he’s on the court.
Three years from next Friday the Bush administration will thankfully be history, but Judge Alito will still be on the Supreme Court and given the actuarial tables, he could be still be there for the next five administrations (Justice Stevens has been there since the Ford administration). That’s reason enough to ask him anything and everything and demand straight answers.