Anyone who tuned in for a random five minutes of Samuel Alito's confirmation hearing might have come away reassured of what he called "an open mind" on Roe v. Wade. Over and over again on Tuesday, Alito sought to persuade the Senate Judiciary Committee about his respect for precedent and his promise, should he be confirmed and face an abortion-rights challenge, to put out of mind his 1985 assertion that Roe should be overturned.
Yet the substance of Alito's carefully chosen words finally should sound alarm bellls. Senator Arlen Specter opened Tuesday's questioning with a colloquy about sexual privacy, Roe and the reaffirmation of abortion rights in Planned Parenthood v. Casey. If the avowedly prochoice Specter were to reread his transcript, he would find that while Judge Alito was promising an open mind, he was declining even token respect for reproductive-rights precedents.
Specter pitched Alito a softball query about Griswold v. Connecticut, the 1966 case establishing the right to contraception. "Griswold dealt with the right of privacy on contraception. You agree with that," Specter proposed. Instead of a "yes," Alito dodged: "I agree that Griswold is now, I think, understood by the Supreme Court as based on the liberty clauses..." Alito won't even commit himself to condoms.
Specter tried another friendly angle with Planned Parenthood v. Casey: What did Alito think of the argument by Justices O'Connor, Kennedy and Souter that overturning Roe would "subvert the Court's legitimacy" because of evolving social consensus in favor of women's control of reproduction? Alito: "The Supreme Court, my court, all federal courts, should be insulated from public opinion."
Over and over through the day, Alito leaned on the importance of precedent in evaluating any case--with respect for precedent on the surrogate issues for Roe.
Yet when it comes to respect for precedent, Alito suffers from a profound credibility gap--a point ignored until Senator Chuck Schumer took over questioning Alito late in the day. As Schumer pointed out, Alito has routinely been charged by colleagues on the bench with ignoring precedent. Schumer read off the condemnations of Alito's findings from other Third Circuit judges: "contrary to our precedent"; "ignores our precedent"; "ignored case after case." Schumer came close to making it personal when he quoted Judge David Garth, for whom Alito had clerked, calling one of Alito's opinions "unprecedented in its disregard for the principles of stare decisis."
Alito's disregard for precedent in fact lies at the heart of his extremism, an extremism largely obscured at Tuesday's hearings by his impassive civics-class explanations of judicial process. Senator Dianne Feinstein asked Alito about his now-famous dissent in US v. Rybar, arguing that the federal ban on machine-gun sales violates the Constitution's commerce clause. Alito made his argument--that Congress didn't provide data proving that machine-gun sales have an interstate impact--sound narrow and reasonable. What he didn't say--and what no Democrat thought to point out--was that his argument was rejected by courts in no fewer than eleven different cases, and in Rybar his appellate court colleagues accused him of violating the separation of powers.
Before Wednesday's hearing, senators might want to read a recent analysis of Alito's rulings prepared by a team of professors and students at Yale Law School, Alito's alma mater. That report makes it clear that the Rybar case holds the key to one of Alito's most radically far-right streaks: nothing to do with gun control but with his repeated demand--in Rybar, in Casey, in other cases--that Congress provide "empirical support" before "we sustain some novel law." With this demand, Alito is to the right of Scalia, challenging the independent powers of Congress going back to the nineteenth century.
If Alito attempted to fog his own judicial radicalism, his portrayal of his more controversial life choices at times strained credulity as well. When Senator Patrick Leahy asked "why in heaven's name" did Alito boast in 1985 of membership in Concerned Alumni of Princeton--notorious in those years for bashing co-education and minority recruitment, renounced by Princetonians Bill Frist and Bill Bradley--Alito claimed he had "wracked my memory" and could not recall; then he changed the subject to campus protests against the ROTC. Senator Joe Biden later caustically remarked that in 1985 even himself--a University of Delaware man--knew of the CAP controversy.
On these extrajudicial controversies, what was most notable Tuesday was Alito's repeated attempt to evade responsibility for his own words and deeds. Caught on camera effusively praising Judge Robert Bork, he replied that he had merely been a loyal Reagan employee touting the Administration's Supreme Court nominee--even though at the time he was a US Attorney, not a White House apparatchik. Senator Edward Kennedy reminded Alito that at his confirmation as an appellate court judge he had explicitly pledged to monitor conflicts of interest involving his mutual fund investments in Vanguard, yet he eventually sat on a major case involving the firm. At first Alito suggested that a computer-entry error kept Vanguard off his recusal list, then backed away when pressed by Senator Feingold and called it an oversight. And his now-famous 1985 argument for "the supremacy of the elected branches of government" over Warren Court civil rights cases was "a very inapt phrase," which Alito "didn't mean...literally."
By the end of a long day, a weary Arlen Specter was exchanging jokes with Alito about mothers-in-law and battered spouses: a very inapt ending, perhaps, to a day which began with Alito's alarming reassurances about Roe v. Wade. With a second round to go, the questions for Alito are not over; but Democrats will need to focus more sharply on the credibility gap the judge himself has opened.