WASHINGTON (ABP) — Supreme Court nominee Samuel Alito artfully dodged specifics in answering senators' repeated questions about his views on abortion rights, government spying and other controversies Jan. 10.
Members of the Senate Judiciary Committee had their first opportunity to question the federal appellate judge during the second day of his confirmation hearings. Several questioners devoted large chunks of the hours-long session to divining how Alito might vote should the question of a constitutional right to abortion come before the high court.
The committee's chairman, Sen. Arlen Specter (R-Pa.), dove right into the volatile subject with his first question. He asked Alito whether he agreed that the Constitution protects a “right to privacy” — the underpinning of the Supreme Court's 1973 Roe v. Wade decision that legalized abortion nationwide.
“I do believe the Constitution protects the right to privacy,” Alito replied. “People have the right to privacy in their homes and in their papers and in their person.”
Alito also regularly expressed support for the legal doctrine of stare decisis — Latin for “let the decision stand” — that says legal precedents generally should not be overturned.
Specter, who supports abortion rights, and some of his Republican colleagues on the committee pointed to Alito's mixed rulings on abortion rights as a judge on the 3rd U.S. Circuit Court of Appeals as well as his respect for precedent to suggest that, if appointed to a court closely divided on abortion rights, Alito likely wouldn't overturn Roe.
But the nominee was careful not to commit to either upholding or overruling the decision.
“There needs to be a special justification for overruling a prior precedent,” he said, in response to another question from Specter.
On at least three occasions during the course of the day, Alito noted the principle of letting precedents stand is not absolute — particularly for a judge on the highest court in the land.
“I don't want to leave the impression that stare decisis is an inexorable command, because the Supreme Court has said that it is not,” he told Specter. Later, in response to a question from Sen. Dianne Feinstein (D-Calif.), Alito went further.
“The rule of stare decisis is not an inexorable command — and I don't believe anyone would want a rule in the area of constitutional law that says a constitutional decision, once handed down, is one that can never be overruled,” the nominee said.
Alito received several questions about a controversial 1985 job application he wrote for a promotion within the Reagan administration's Department of Justice. In it, he flatly stated that he “personally believe[d] very strongly” that “the Constitution does not protect a right to an abortion.”
Questioned about it by Specter, Alito only mildly distanced himself from the statement, noting that he would have to consider any abortion case that came before him in the context of precedent as well as the facts of the particular case.
Later, under sustained questioning from Sen. Charles Schumer (D-N.Y.) on whether he still agrees with that statement, Alito was at pains to avoid addressing it squarely.
“It was an accurate statement of my views at the time — that was in 1985 — and I made it from my vantage point as an attorney in the solicitor general's office,” he said. “If the issue were to come before me as a judge, if I were confirmed, and if it were to come up, the first issue that would have to be decided is the issue of stare decisis. If the court were to get beyond the issue of stare decisis, then I would have to go through the full judicial decision-making process.”
Schumer protested that he was not asking Alito about a specific case, but about whether he continues to hold a view of the Constitution he previously endorsed.
“You stated it proudly — you stated it unequivocally — that he Constitution does not protect the right to an abortion — do you believe it now?” Schumer asked.
But Alito gave little ground. “I would need to know the case that is before me, and I might have to consider the arguments — and they might be different arguments from the arguments that were available in 1985.”
The Alito hearings will continue throughout the week. 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.
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