WASHINGTON (ABP) — In four days of hearings before the Senate Judiciary Committee, President Bush's pick for a pivotal seat on the Supreme Court revealed little about how he may rule on the day's most controversial issues.
But experts said Samuel Alito's answers and record hint at a rightward tilt that could very well shift the court's balance of power for decades to come — particularly on issues important to religious Americans.
One senator, on the first day of questioning Jan. 10, went to what many believe is the heart of the controversy over Alito. “The real debate here is about Roe [v. Wade],” said Sen. Tom Coburn (R-Okla.), speaking about the court's landmark 1973 decision that legalized abortion nationwide. “We're going to go off in all directions, but the decisions we make … are going to be made on Roe.
Alito, currently a judge on the 3rd U.S. Circuit Court of Appeals in Philadelphia, has been tapped by Bush to replace Justice Sandra Day O'Connor. O'Connor has proved to be a crucial vote on the closely divided court. In particular, she has regularly voted to uphold the core of Roe, as well as generally voting in favor of a strong view of church-state separation.
Alito, however, is widely expected to approach such questions differently.
In 18 hours of testimony, Alito assiduously avoided answers that might make clear how he would vote on such issues were they to come before him on the high court. However, he also declined to endorse Roe as “settled law” or distance himself significantly from statements he made in the past setting forth anti-abortion views and views in opposition to strong church-state separation.
The committee's chairman, Sen. Arlen Specter (R-Pa.), dove right into the volatile subject with his first question Jan. 10. He asked Alito whether he agreed the Constitution protects a “right to privacy” — the underpinning of Roe.
“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 “to stand by the decision” — 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 in his 15 years on the Third Circuit, 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 hearings, 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.
As a judge on a lower federal court, Alito was bound by Supreme Court precedents. But, if elevated to that body, he would not face the same constraints.
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 stated his pride in, as an administration attorney, arguing for positions he “personally believe[d] very strongly” — including 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 the Constitution does not protect the right to an abortion. Do you believe it now?” Schumer asked.
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.
Democrats found those answers unsatisfactory. “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.
Meanwhile, strong abortion-rights opponents on the committee attempted to nudge Alito in the other direction on abortion.
Sen. Sam Brownback (R-Kan.) noted 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?”
Alito agreed.
Brownback referred to 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 the decision's value as precedent 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.
In the area of church-state law, Alito's 15-year record on the appellate court shows great deference to accommodations of religious expression — both for individuals and for government entities.
Under questioning, however, Alito declined to give his views on one of the most controversial church-state areas of the law: how, exactly, to interpret the First Amendment's establishment clause, which bans government support for religion.
Brownback 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 involving 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,'” he said.
Durbin queried Alito more specifically about his view on the establishment clause. Specifically, the senator 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.
Senators also questioned Alito on a legal theory — recently endorsed by some religious conservatives — as a remedy to perceived overreach by federal judges in their decisions on controversial issues. Using the Constitution's Article III, Section 2, advocates of the theory claim that Congress has the power to remove certain issues from the jurisdiction of the federal courts — called court stripping. In the past year, conservatives in Congress have proposed bills designed to strip the federal courts of the authority to decide cases on same-sex marriage, the Pledge of Allegiance and public displays of the Ten Commandments.
While many mainstream legal scholars say such court-stripping bills would be unconstitutional, Alito declined to express his view on the subject, claiming the question is still an open one.
“My understanding is that there is a division of thought among scholars on the issue,” Alito said.
Outside the hearing room, two top Democrats on the committee told reporters that the answers on those questions left them very unsatisfied.
“It is not clear that he will preserve and protect Americans' fundamental rights,” said Vermont Sen. Patrick Leahy, the committee's ranking minority member. “Can you imagine if, back in the 1950s, Congress had passed laws removing court jurisdiction over civil-rights cases?”
Sen. Charles Schumer (D-N.Y.) said Alito's lack of clarity on how he might rule on the important issues of the day was unfortunate. “This is too important a job, too sacred a job, to let somebody go on the bench without these answers,” he told reporters.
But Republicans on the committee seemed clear that they would all vote in Alito's favor, making his confirmation all but certain. Several noted that he had been exceedingly “forthcoming” in his answers and that the nominee was right not to give a prediction of how he might vote on controversial cases before he hears them.
Sen. John Cornyn (R-Texas) deplored what he called “desperate” tactics by Democrats that were “the last-minute, dying gasp” of their effort to derail Alito's nomination.
Democrats were simply “looking for something to hang their hat on to explain their 'no' vote on this nominee,” Cornyn said.
The committee is scheduled to vote on Alito's nomination Jan. 17. If they approve, it will move to the full Senate, which will likely vote before the end of the same week.
-30-