WASHINGTON (ABP) — Despite further intense questioning on the third day of his confirmation hearings, Samuel Alito revealed little of his views on abortion or other controversial constitutional questions, including church-state relations, Jan. 11.
Alito, currently a judge on the 3rd U.S. Circuit Court of Appeals, is President Bush's choice to replace retiring Supreme Court Justice Sandra Day O'Connor. Because of O'Connor's pivotal role in deciding close cases on controversial issues, senators have focused much of their questioning on areas where Alito's vote may tip the balance on the ideologically divided panel.
Several senators revisited a line of questioning from the previous day, wherein they quizzed Alito on a statement he made in a 1985 application for a promotion within President Reagan's Department of Justice. In the application, Alito noted that he had been proud of his service in the department advocating to “advance legal positions in which I personally believe very strongly,” and that he was “particularly proud” of his contribution in cases in which the administration argued “that the Constitution does not protect a right to an abortion.”
Alito declined, in his first day of questioning, to distance himself significantly from that statement. He illuminated his views no more on the second day.
“As I listen to the way that you have answered this question this morning and yesterday, and the fact that you have refused to refute that statement in the 1985 job application, I'm concerned,” Sen. Richard Durbin (D-Ill.) told Alito. “I'm concerned that many people will leave this hearing with the conclusion that you will be the deciding vote to illegalize abortion in this country.”
But Alito simply reiterated his line on the subject from the previous day of questioning: Since the constitutionality of abortion is a subject that has come before the court with great frequency since the 1973 Roe v. Wade decision, he said, he should not make any pronouncements about how he might rule on such a question.
“The line that I have to draw and that other nominees have to draw is to say that, when it comes to something that realistically could come before the court, they can't answer,” he said.
Alito also repeated his commitment to stare decisis — the Latin term for the legal doctrine that court precedents shouldn't be overturned without particularly good reasons.
But some of the committee's outspoken abortion opponents — such as Sen. Sam Brownback (R-Kan.) — nudged Alito in the other direction, noting that bad precedents should be overturned, even taking the principle of stare decisis into account.
“The Supreme Court has gotten a number of things wrong at times — and the answer when the court gets things wrong is to overturn the case,” he told Alito. “Is that correct?”
Brownback noted Plessy v. Ferguson, the infamous 1896 Supreme Court decision that said “separate but equal” facilities for white and black Americans does not violate the Constitution. That decision, he emphasized, was reaffirmed over the years but ultimately overturned by the groundbreaking 1954 Brown v. Board of Education decision that declared racial segregation in public schools unconstitutional.
“Plessy had stood on the books since 1896…twice the length of time of Roe v. Wade,” Brownback said. “Stare decisis would say, in the Brown case, you should uphold Plessy. Is that correct?”
Alito agreed, and said that its precedential value couldn't trump the fundamental unconstitutionality of racial segregation. “The court certainly got it wrong in Plessy, and got it spectacularly wrong in Plessy,” he said.
Brownback also mentioned several recent cases involving church-state issues, including a case in which Alito found that Jersey City, N.J., did not violate the First Amendment by placing a holiday display that included religious symbols on city property. “Are these types of display, you feel, generally constitutionally permissible?” he asked.
Alito demurred on agreeing with that blanket statement, noting that the issue of governmental religious displays comes before the court regularly, and that the justices have drawn “some very fine lines” on that and other issues implicating the First Amendment's religion clauses.
But Alito did speak glowingly of Jersey City's practice of erecting displays to celebrate the holidays and heritage of the many ethnic and religious groups represented among its citizenry.
“Their view was, this is the way we should show that all of these groups are valuable parts of our community and express our embracing of them.”
Later, Durbin queried Alito more specifically about his view on the First Amendment's establishment clause, which bans government endorsement of religion. Specifically, Durbin noted another line from Alito's 1985 job application essay, in which he said he had been inspired to pursue a legal career, in part, by his disagreement with decisions on the establishment clause and other issues by the Supreme Court under late Chief Justice Earl Warren. Warren's court established much of the precedent on church-state issues that the high court follows to this day.
Noting competing theories of how to interpret the establishment clause — some more permissive of government endorsements of religion than others — Durbin asked Alito to which theory he ascribes.
“I do not, myself, have a grand, unified theory of the establishment clause,” Alito replied. But he said he does have great respect for that portion of the Constitution: “It embodies a very important principle, and one that has been instrumental in allowing us to live together successfully as probably the most religiously diverse country in the world and maybe in the history of the world.”
Durbin also asked Alito — a Catholic — how his religious beliefs would influence his judicial decisions overall, were he to be confirmed to a seat on the high court.
“My personal religious beliefs are important to me in my private life,” he replied. “But my obligation as a judge is to interpret and apply the laws to the United States and not my personal religious beliefs.”
The Judiciary Committee is scheduled to vote on Alito Jan. 17. If approved by the panel, his nomination is tentatively scheduled for a vote by the full Senate on Jan. 20.