Alito Clearly Opposes Roe v. Wade. Why Can't He Say So, And Let the Chips Fall Where They May?

I know politics is a game, but I dislike disingenuity, and I wish our representatives would stop playing games with issues that directly affect people's lives.

In his testimony yesterday and today before the Senate Judiciary Committee, Supreme Court nominee Samuel Alito has argued that legal positions he has taken in written documents in the past reflect his work as an advocate, not necessarily his personal views. However, in 1985, in a job application (not a brief or a legal memorandum), Samuel Alito said this about his views on Roe v. Wade:

“I am and always have been a conservative.... I believe very strongly in... the legitimacy of a government role in protecting traditional values. *** Most recently, it has been an honor and a source of personal satisfaction for me ... to help to advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court ... that the Constitution does not protect a right to an abortion.” Link. [Caution: PDF]

Also in 1985 -- when he was 35 years old, not just a kid fresh out of law school -- Judge Alito wrote a memorandum proposing a step-by-step approach to obtaining the overturning of Roe v. Wade. Again, this was a memo privately giving legal advice to his client, not an argumentative document filed with a court.

Today, Judge Alito was presented with a fair and direct question: did those documents accurately reflect his view back in 1985? He answered: yes, they did. But when he was asked whether they still represented his view today, he was evasive. His most telling exchange was with Sen. Chuck Schumer, D-N.Y.:

SCHUMER: *** Judge Alito, in 1985, you wrote that the Constitution -- these are your words -- does not protect a right to an abortion. You said to Senator Specter a long time ago, I think it was about 9:30 this morning, 9:45, that those words accurately reflected your view at the time.

Now let me ask you: Do they accurately reflect your view today? Do you stand by that statement? Do you disavow it? Do you embrace it?

SCHUMER: It's OK if you distance yourself from it, and it's fine if you embrace it. We just want to know your view.

ALITO: Senator, 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, but it was an expression of what I thought at that time.

If the issue were to come before me as a judge, if I'm confirmed and if this issue were to come up, the first question that would have to be addressed is the question of stare decisis, which I've discussed earlier and it's a very important doctrine. And that was the starting point and the ending point of the joint opinion in Casey.

And then if I were to get beyond that, if the court were to get beyond the issue of stare decisis, then I would have to go through the whole judicial decision-making process before reaching a conclusion.

SCHUMER: But, sir, I am not asking you about stare decisis. I'm not asking you about cases. *** Regardless of case law, in 1985, you stated -- you stated it proudly, unequivocally, without exception -- that the Constitution does not protect a right to an abortion.

Do you believe that now? *** It was a statement you made directly. You made it proudly. You said you're particularly proud of that personal belief that you had. You still believe it.

ALITO: And, Senator, I would make up my mind on that question if I got to it, if I got past the issue of stare decisis after going through the whole process that I have described.

I would need to know the case that is before me and I would have to consider the arguments and they might be different arguments from the arguments that were available in 1985.

SCHUMER: But, sir, I'm not asking you about case law. Now, maybe you read a case and it changed your view of the Constitution. *** [I]t's still important to know your view of what the Constitution contains. ***

ALITO: But the only way you are asking me how I would decide an issue...

SCHUMER: No, I'm not. I'm asking you what you believe is in the Constitution. ***

ALITO: The Constitution contains the due process clause of the Fifth Amendment and the 14th Amendment. It provides protection for liberty. It provides substantive protection. And the Supreme Court has told us what the standard is for determining whether something falls within the scope of those protections.

SCHUMER: Does the Constitution protect the right to free speech?

ALITO: Certainly it does. That's in the First Amendment.

SCHUMER: So why can't you answer the question of: Does the Constitution protect the right to an abortion the same way without talking about stare decisis, without talking about cases, et cetera?

ALITO: Because answering the question of whether the Constitution provides a right to free speech is simply responding to whether there is language in the First Amendment that says that the freedom of speech and freedom of the press can't be abridged. Asking about the issue of abortion has to do with the interpretation of certain provisions of the Constitution.

SCHUMER: Well, OK. I know you're not going to answer the question. I didn't expect really that you would, although I think it would be important that you would. I think it's part of your obligation to us that you do, particularly that you stated it once before so any idea that you're approaching this totally fresh without any inclination or bias goes by the way side.

But I do have to tell you, Judge, you're refusal I find troubling. And it's sort as if I asked a friend of mine 20 years ago -- a friend of mine 20 years ago said to me, he said, you know, I really can't stand my mother-in-law. And a few weeks ago I saw him and I said, "Do you still hate your mother-in-law?"

He said, "Well, I'm now married to her daughter for 21 years, not one year."

I said, "No, no, no. Do you still hate your mother-in-law?"

And he said, "I can't really comment."

What do you think I'd think?

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Two-thirds of the American people believe that Roe v. Wade should not be overturned, and over sixty percent believe Supreme Court nominees should clearly state their position on Roe before being confirmed. Samuel Alito has written that he believes Roe was wrongly decided and that there is no protection for abortion in the Constitution. He declines to say whether he believes that today, but he scrupulously does not disavow his earlier position. He'll say openly that the Constitution protects free speech, but not whether it protects abortion. Even his mother has told reporters, “of course he’s against abortion.”

So the question before our Senators is simple: Will you confirm, to a swing seat, with lifetime tenure, a judge who not only has consistently and proudly opposed a well-established legal ruling that is supported by the overwhelming majority of the American people, but who also lacks the intellectual and moral courage to tell us, openly and clearly, what his position is?

We deserve better. If Judge Alito wants an honest up-or-down vote, then he should tell us honestly what he believes, and be prepared to defend it. If he does so with intellect, energy, and honor, then our Senators may find him worthy of the job even if they disagree with his particular stance. But if he lacks the courage even to state what he stands for, then he certainly does not deserve our trust.

That is not hard for any regular American to understand. It's how we live our own lives. But for some reason, Judge Alito and his supporters do not seem to understand that, and if they don't get the message soon, then we should give them clearer instructions -- by filibuster, if necessary.