When a Supreme Court nominee starts facing questions about his or her ideology during confirmation hearings, he or she has a few choices. One is to play dumb and answer questions like Clarence Thomas did in 1991. (“Roe? Griswold? Never heard of ’em.”) If there are memoranda expressing an opinion on some of these issues, which was the case with John Roberts, a nominee can assert that he or she was merely representing his client.
This week, however, senators from both parties let Samuel Alito know that he’ll have to look for a solution behind Door #3.
Two key Republicans and some Democrats said yesterday that Supreme Court nominee Samuel A. Alito Jr. will be unable to assert during his confirmation hearing that his personal views have no bearing on how he might rule because he has stated legal opinions on contentious issues so strongly.
Alito’s comments on abortion, affirmative action and other issues in a 1985 memo went beyond personal musings, these senators said, and instead were stated as clear-cut legal opinions. One of those opinions was that “the Constitution does not protect a right to an abortion.”
According to the senators, including Republicans Olympia J. Snowe (Maine) and John Cornyn (Tex.) and Democrat Charles E. Schumer (N.Y.), Alito has two options in his ongoing efforts to distance himself from the comments: He can say he has changed his mind, they said, or he can say the accumulation of cases affirming the 1973 Roe v. Wade abortion decision now outweighs his belief that Roe was wrongly decided.
The lawmakers suggested that Alito has largely forfeited a third option that helped some of his predecessors sidestep questions about their legal views and deny opponents a hook for claiming that their future court rulings were predictable.
Cornyn is a fairly predictable Bush ally, so if he’s sending warning signals to Alito, it suggests a real impediment for the nomination.
Alito’s problem is that he was so specific about his beliefs and judicial philosophy, he can’t undo it. His 1985 Justice Department memo “is decidedly a legal view which involves judicial philosophy and judicial reasoning,” Schumer said yesterday. At his confirmation hearing, Alito “cannot, as previous nominees have done, say ‘I refuse to answer.’ ”
Ezra said this morning that “Alito’s only options are obviously dishonest squirming, which’ll leave him looking like he’ll vote to overturn anyway, or an admission that he thinks it’s wrongly decided law. Either way, it becomes a liability.”
Hearings are set to begin on Jan. 9. I’ll be making popcorn.