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.