Earlier today, Judge Samuel Alito was questioned by U.S. Senator Arlen Specter (R-PA), Chariman of the Senate Judiciary Committee, concerning his views on judicial precedents involving abortion.
Steven Ertelt at LifeNews has published three articles which summarize the session, capture the highlights and provide good perspective:
Samuel Alito Defends Pro-Life Views Against Abortion in 1985 MemosDuring their discussion on Roe v. Wade and related rulings, Alito made the following statements:Alito said he would "approach the question [of abortion] with an open mind." … [Regarding his 1985 statement that indicted there is no right to abortion] he said, "That was a true expression of my views at the time”Abortion Precedent in Roe Not Necessarily Permanent, Samuel Alito SaysAlito did not go as far as Chief Justice John Roberts did when he described Roe as "embedded" in the culture, though Roberts also explained how a Supreme Court precedent like Roe v. Wade could be overturned.Samuel Alito Defends Opinion on Spousal Notification for Abortions LawDuring his hearings in the Senate Judiciary Committee on Monday, Samuel Alito defended his decision in a case that eventually went to the Supreme Court that involved a Pennsylvania law limiting abortions. One aspect of the law allowed husbands to know when their wives were considering an abortion of their child.
stare decisis – “It's not an exorable command, but it is a general presumption that courts are going to follow prior precedents.” He later added, “And the presumption is that the court will follow its prior precedents. There needs to be a special justification for overruling a prior precedent.”
Privacy: I do agree that the Constitution protects a right to privacy. And it protects the right to privacy in a number of ways. The Fourth Amendment certainly speaks to the right of privacy. People have a right to privacy in their homes and in their papers and in their persons. And the standard for whether something is a search is whether there's an invasion of a right to privacy, a legitimate expectation of privacy.
The Constitution: The principles don't change. The Constitution itself doesn't change. But the factual situations change. And, as new situations come up, the principles and the rights have to be applied to them.
For those interested in more, the Washington Post has published the full transcript. Of particular interest is the exchange between Sen. Specter and Judge Alito on the precedent of Casey:
SPECTER: Do you agree that Casey is a super-precedent or a super stare decisis, as Judge Luttig said?Regarding the 1985 memo in which Alito said that, in his view, there was not a constitutional right to abortion:ALITO: Well, I personally would not get into categorizing precedents as super-precedents or super-duper precedents or any... I agree with the underlying thought that when a precedent is reaffirmed, that strengthens the precedent.
Specter: Let me come now to the statement you made in 1985 that the Constitution does not provide a basis for a woman's right to an abortion. Do you agree with that statement today, Judge Alito?In a process that is designed to make speeches rather than elicit information; Alito's answers were adequate if not good. From Captain's Quarters:ALITO: Well, that was a correct statement of what I thought in 1985 from my vantage point in 1985, and that was as a line attorney in the Department of Justice in the Reagan administration.
Today, if the issue were to come before me, if I am fortunate enough to be confirmed and the issue were to come before me, the first question would be the question that we've been discussing, and that's the issue of stare decisis.
And if the analysis were to get beyond that point, then I would approach the question with an open mind and I would listen to the arguments that were made.
SPECTER: So you would approach it with an open mind notwithstanding your 1985 statement?
ALITO: Absolutely, Senator. That was a statement that I made at a prior period of time when I was performing a different role.
And as I said yesterday, when someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues.
SPECTER: Well, Judge Alito, coming to the role you had in the solicitor general's office where you wrote the memorandum in the Thornburg case urging restriction and ultimate appeal of Roe, that was in your capacity as an advocate. And I have seen your other statements that the role of an advocate is different from the role of a judge.
But when you made the statement that the Constitution did not provide for the right to an abortion, that was in a statement you made where you were looking to get a job, a promotion, within the federal government. So there's a little difference between the 1985 statement and your advocacy role in the Thornburg memorandum, isn't there?
ALITO: Well, there is, Senator. And what I said was that that was a true expression of my views at the time, the statement in the 1985 appointment form that I filled out. It was a statement that I made at a time when I was a line attorney in the Department of Justice.
I'm not saying that I made the statement simply because I was advocating the administration's position. But that was the position that I held at the time. And that was the position of the administration.
It looks like Alito has run the abortion gauntlet with Specter. This appears to have been one of the "subtle minuets" that got mentioned in yesterday's hearing. Specter ran through the questions rather quickly after hearing the components of answers that made Alito appear most moderate on the question. An old prosecutor himself, I expect that Specter knew exactly what answers he would get from Alito -- yet another indication that Specter is back on the reservation.Not all pro-life readers will be pleased with Alito's answers because they provide no guarantee that Alito will vote to reverse abortion related precedents. However, his answers represent those of a strict constructionist who will follow the constitution rather than legislating from the bench.
Posts by pro-life bloggers related to the Supreme Court hearings are aggregated here.
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