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.”