Confirmation hearings for Supreme Court nominees should always be about more than the abortion debate. And the Senate Judiciary Committee hearings on the nomination of Judge Samuel Alito to serve on the high court have touched on a broad variety of issues -- including the essential question of whether the court will address the Bush administration's abuses of authority by enforcing the Constitutional balance of powers.
But, as has been the case in confirmation hearings for the better part of three decades, the search for signals with regard to the nominee's stance on reproductive rights matters has played a dominant role in the advice and consent process that has played out in Washington this week.
In something of a deviation from many past confirmation hearings, however, and dialogue about choice has provided useful insights into Alito's activist approach to judging. And those insights have led an influential moderate Republican group to come out against the nominee.
Confirming fears that he intends to join the court with an activist agenda, Alito distanced himself from the language used by Chief Justice John Roberts during confirmation hearings last year, when Roberts sought to ease fears about whether he wanted to join the court with the purpose of constraining or eliminating abortion rights. In answering questions from senators, Roberts expressed the mainstream view that the 1973 Roe v. Wade decision, which established that a woman's right to privacy gives her control of decisions about whether or not terminate a pregnancy, is "settled law."
While U.S. Sen. Richard J. Durbin, D-Illinois, pressed Alito on the point, asking whether the nominee believes that the ruling in Roe is "the settled law of the land," the current nominee steadfastly refused to echo Roberts.
Suggesting that the meaning of "settled" is open to interpretation -- "If 'settled' means that it can't be reexamined, then that's one thing. If 'settled' means that it is a precedent that is entitled to respect . . . then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis" -- Alito went out of his way to maintain the option of revisiting Roe and, potentially, reversing it.
Earlier in the hearings, Alito told Judiciary Committee chair Arlen Specter, R-Pennyslvania, that, if he is confirmed, he will "approach the (choice) question with an open mind."
But Alito, who as a member of the Reagan administration in the 1980s asserted that there was no Constitutional protected right to choose, refused to distance himself from the statement that seems to indicate his mind is anything but open on the issue. "That was a true expression of my views at the time," said Alito, when asked about 1985 memos he wrote disputing the argument that the Constitution guarantees women control over their own bodies. At no point, though he was given numerous opportunities to do so, did Alito suggest that his opinion had evolved since 1985.
Notably, after Alito testified before the committee, the group Republican Majority for Choice (RMC), issued a statement that said, "There is no crystal ball to predict how a Justice Alito would rule in future cases; therefore we have closely monitored the confirmation hearings with the hope that Judge Alito would offer some clarifying statements that would allay our concerns about his record. Instead, he side-stepped the issue of whether or not the right to privacy in the Constitution extends to reproductive choice. He avoided answering whether Roe was settled law and existing precedent required a health exception to statutes limiting a woman's access to abortion."
"Without such assurances, we can only calculate his judicial philosophy on reproductive rights through the prism of his past actions and statements," the RMC statement continued. Referring to retiring Justice Sandra Day O'Connor, the critical swing vote on the court with regard to reproductive rights and other issues, the group added, "As the replacement for the architect of the 'undue burden' standard, the stakes are too high for RMC to support an appointee who outlined a blueprint to dismantle that very standard."
Accordingly, the organization announced its opposition to Alito's nomination. The opposition to Alito contrasts with the groups stance regarding Roberts, about whom RMC declared, "Liberal and reactionary opposition based on a circumstantial review of Justice Roberts' limited public record reflect an agenda predisposed to oppose all Republican nominees."
RMC is the largest pro-choice group in the Republican Party and has more influence than most moderate groups with GOP senators. In addition to Specter, three other Republican senators -- Rhode Island's Lincoln Chafee, and Mainers Susan Collins and Olympia Snowe -- serve on the Republican Majority for Choice advisory council. The question now is whether those senators were paying as close attention to Alito's testimony as the group they advise.
Needless to say, the same goes for other senators, Republicans and Democrats, who claim to support a right to choose.
After all, as the Republican Majority for Choice noted, "The reality is that Judge Alito would not have to vote to overrule Roe in order to be the architect of the denial of a woman's right to choose. He could give lip service to respecting Roe while upholding the numerous legislative efforts to chip away at reproductive freedom. The cumulative result is that Roe v. Wade and its progeny are rendered meaningless."