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NYT on Alito and Abortion

Because we haven’t run this one into the ground quite deeply enough, a good editorial in the Times about Alito and his opposition to reproductive rights. If you’re tired of hearing about this, my apologies. But it’s kinda important. All emphasis in the article is mine.

Judge Alito and Abortion

Judge Samuel Alito Jr., President Bush’s Supreme Court nominee, promised yesterday that his personal views would not be a factor in how he approached abortion cases. The trouble is that there is mounting evidence that Judge Alito has been hoping for years to overturn Roe v. Wade, the landmark decision recognizing women’s abortion rights. His attempts to explain away his record of insisting that the Constitution does not protect abortion are becoming more tortured, and harder to believe.

Judge Alito’s personal views are too well known to be debated – his mother recently told The Associated Press, “Of course, he’s against abortion.” Many people personally oppose abortions while supporting a woman’s right to reach her own decision. But when Judge Alito applied for a promotion to a legal position in the Reagan administration in 1985, he made it clear that he was not one of those people. He was “particularly proud,” he wrote, of his work as a lawyer on cases arguing “that the Constitution does not protect a right to an abortion.”

Judge Alito has tried to explain away that fairly unambiguous statement by saying he was simply an advocate seeking a job. That immediately raised questions about his credibility. Had he misrepresented his views to get a job? Is he misrepresenting them now since he is trying to get an even more important one?

In any case, a memo released later makes it clear that Judge Alito opposed Roe even when he wasn’t a job applicant. In 1985, he told his boss that two pending cases provided an “opportunity to advance the goals of overruling Roe v. Wade and, in the meantime, of mitigating its effects.” It is hard to believe that Judge Alito did not regard Roe as illegitimate when he wrote those words. If he agrees with Roe, it raises serious questions about what kind of lawyer he is, because in that case he would have been working to deny millions of women a fundamental right that he believed the Constitution guaranteed them.

Judge Alito is suggesting now that he may not vote to overturn Roe out of respect for precedent. But the Supreme Court reverses its own precedents with some frequency.

Justice Clarence Thomas spoke at his confirmation hearings about his respect for precedent. On the court he has opposed not only Roe, but also the 1965 case recognizing married people’s constitutional right to buy birth control.

Many aspects of Judge Alito’s record are troubling, like his opinion that Congress exceeded its power when it passed a ban on machine guns, and his membership in a conservative Princeton alumni group that complained stridently about the admission of women and the number of minority students on campus. But when his confirmation hearings begin next month, abortion is likely to be critical, because even some Republican senators have said they will have trouble voting for a nominee who opposes Roe.

The Senate needs to look through the cloud of explanations and excuses and examine where Judge Alito really stands on abortion rights.


20 thoughts on NYT on Alito and Abortion

  1. There’s something else that strikes me as strange about Alito’s flip-flopping on Roe. Bush and a powerful segment of Republican leadership are openly against abortion. It makes sense that a Bush-appointee would oppose Roe or at least support restricting its scope. So why the heck is Alito being secretive about this? I don’t even understand the strategy from a Republican perspective. There are Republican senators who won’t support a pro-choice candidate.

  2. And anyone still interested enough in the Alito nomination to wade through the misrepresentations in the NYT story owes it to themselves to also read this counterpoint. It’s not in direct response to the Times editorial, but most of the MSM op-ed pieces on Alito have basically been interchangeable thus far.

    For context, let’s begin by recognizing a glaring contradiction in the positions advanced by Alito’s critics. On the one hand, the Left says that whether or not Roe was rightly decided, the passage of time and intervening cases like Casey mean that it should be maintained. On the other hand, the Left says that it is absurd that someone who 20 years ago opined that Roe was wrongly decided might find that the passage of time and intervening cases like Casey mean that it should be maintained.

    Let’s further recognize that there are plenty of folks, like liberal law professor Cass Sunstein, who think that (in Sunstein’s words) “although Roe was wrong, and a big mistake, the Court should not now overrule it.” These include vigorous critics of Roe like former Solicitor General Charles Fried (Alito’s former boss), who argued in 1985 that Roe should be overturned but who now believe that it should be maintained. I respectfully but vigorously disagree with the Sunstein/Fried position, but the relevant point here is that it is genuinely held by respected legal minds, including those, like Fried, who strongly believed in 1985 that Roe should be overturned.

    It follows that Department of Justice attorney Sam Alito’s memo on Thornburgh in 1985 does not have any clear implications for how a Justice Alito would address Roe two decades later. For Alito to point this out is not to “distance himself” from the 1985 memos (as the Post’s headline and second sentence tendentiously charge) but rather to recognize the very point that the Left insists on: that the question whether to overturn Roe now is arguably different from the same question 20 years ago. It is the “[l]eft-leaning groups,” not Alito, who are “ludicrous” in contending otherwise.

  3. So why the heck is Alito being secretive about this?

    David, you do know that there are canons of ethics preventing judges from stating their opinions about issues that they may have to rule upon, right? That doesn’t mean they shouldn’t be vigorously questioned, but it would be wrong to expect any would-be justice to come out and say explicitly “I definitely [will or will not] vote to overrule Roe.”

  4. he would have been working to deny millions of women a fundamental right

    :::sigh::: This is exactly the kind of intercine mischief that Roe has produced. Even a reasonable pro-choicer realizes that Roe was very bad law and the question of option for abortion (not “right”) is best left to state government.

    Unfortunately, abortion “rights” are more about a political authenticity test.

    pox on both extremist positions

  5. Jon C,

    Nothing prevents him from saying “I fully support the right to privacy and in particular, a women’s right to choose. It is settled law.”

    And he can say that he respects stare decisis and that he would night lightly overrule precedent.

    In the old days prospective SCOTUS nominees were a lot more forthcoming.

  6. In the old days prospective SCOTUS nominees were a lot more forthcoming.

    In the old days, partisans (of both sides) didn’t block perfectly qualified nominees just because they disliked the politics of the nominator.

  7. Even a reasonable pro-choicer realizes that Roe was very bad law and the question of option for abortion (not “right”) is best left to state government.

    I don’t think this is very accurate. The idea that Roe v. Wade is good law is pretty well established; about %60 of Americans think that it is good law. You won’t find too many pro-lifers that think it’s based on dubious legal reasoning outside of the law classroom.

  8. It appears to me that either way Alito takes it, it’s clear he’s blowing smoke up somebody’s ass.

    I’m of the mind that the public is sick of political sleight of hand games. At least nominate someone who is honest about his or her views so we can argue them honestly without this sort of speculation.

  9. In the old days Presidents usually nominated more moderate Justices. And Senators actually consulted and listened to the minority party. And Senators didn’t erase decades long rules favoring the minority party.

  10. Jason

    Polls on what American citizens think about abortion are pretty interesting. You’ll get a majority of support for the parameter of an adult woman’s right to seek an abortion in the first trimester. And you’ll find that most people believe that is what Roe is about.

    But once you get outside of that parameter, support drops dramatically…ie second/third trimester abortions “on demand”, parental notification, partial-birth abortion, et al. People know about Roe’s role in the 3 trimester settings, what they don’t always know is how subsequent rulings (like Casey) pretty much gutted Roe of even its heirarchy of limitations to abortion.

    From what I’ve read on Alito, he seems a very Rule of Law type of judge and one that garners high respect and praise from peers.

    In the old days Presidents usually nominated more moderate Justices. You mean like Ruth Ginsberg? Yes, I certainly recall the personal attacks and threats of filibuster on her ….

    ahem.

  11. “Rule of law” is a pretty meaningless term in appellate law. Yeah, Alito seems intellegent and certainly has the training and experience to be a Justice (unlike that other nominee, Bush’s biggest fan). But, his application of the rule of law is pretty troubling to me. The problem here is he is speaking out of both sides of his mouth. What is it, does he agree with the right to privacy, as he’s suppossedly assured Senators, or does he want to overrule Roe v. Wade as he argued in the Justice Dept? Right now he is a camelean.

    And btw, I’m almost more worried about other areas besides abortion. Especially criminal law. He thinks it’s a reasonable “seizure” to shoot an unarmed teenage suspect in the head. http://www.talkleft.com has a lot on his criminal beliefs.

  12. Robert,

    True, Supreme Court nominations have always been political. And certainly other Presidents have nominated extremists as well. But there has been a concerted effort on the Right to redefine the debate about judges the last 20 years. To the detriment of the country. The use of “actiivist judge” is obscene. And the right-wing has no sense of balance anymore. Like describing Ginsburg as an extreminst. Face it, Clinton nominated fairly moderate judges and the right-wing howled. I just don’t see the world they describe; that Hillary is a far left radical and activist judges are taking America over.

  13. In the old days prospective SCOTUS nominees were a lot more forthcoming.

    To whom, exactly, should Alito be more forthcoming? His hearings haven’t even been held yet! And In the old days, we didn’t even have hearings for SCOTUS nominees. The whole hearing process is a relatively recent phenomenon- mid-20th century if I’m not mistaken.

    I don’t think this is very accurate. The idea that Roe v. Wade is good law is pretty well established…

    There’s a difference between thinking Roe achieved good policy objectives and thinking it was “good law.” Many liberal law profs agree that Roe was good from policy standpoint, but few of them will go on record as saying that the Constitutional reasoning underlying the opinion was anything other than abysmal. Prof Cass Sunstein, quoted in my earlier post above, is one such highly-respected liberal academic.

  14. I do agree a lot of liberal law professors think Roe is not good law. I myself, even though I believe in a right to choose, think Roe is based on a less than convincing rationale. But, I don’t think many non-lawyers hold this position. And now, even those pro-choice lawyers who think it is “bad law” would not advocate overturning it. It has become widely accepted.

    There. I said it. Now agree with me that Bush v. Gore is based on something the majority pulled out of their asses.

  15. And the right-wing has no sense of balance anymore. Like describing Ginsburg as an extreminst. Face it, Clinton nominated fairly moderate judges and the right-wing howled. I just don’t see the world they describe

    and Pauline Kael said of Nixon’s landslide victory over McGovern “No one I know voted for him!”

    If one is so comfortably ensconced on the left as to believe it “moderate”, of course even moderates just the right of center will be “troubling ideologues.”

    Roe v Wade is “widely accepted” because we’ve decided in this instance ends justify means and policy trumps law.

    I’m just not convinced that legislating from the bench is a great idea. Why even have state governments or Congress for that matter if All Things Important can be handed down as Revealed Truth from SCOTUS?

  16. In the old days, partisans (of both sides) didn’t block perfectly qualified nominees just because they disliked the politics of the nominator.

    In the old days, there was a lot more cooperation between the parties on SCOTUS nominations.

    Darleen, Ruth Bader Ginsburg was selected after consultation with Orrin Hatch. Who, as Chairman of the Senate Judiciary Committee throughout most of Clinton’s Presidency, did not have to resort to filibuster to block Clinton’s judicial nominees — he simply did not let them come up for a vote. Hatch prevented far more of Clinton’s moderate lower-court nominees from coming up for vote than the Democrats have filibustered extremists nominated by Bush.

  17. there are canons of ethics preventing judges from stating their opinions about issues that they may have to rule upon

    You could use this to justify not answering any question. After all, if it isn’t an issue he might have to rule on, why would we bother asking him? That said, nobody’s asking him about a specific case. There are dozens of ways in which Roe may come into consideration. This question is much more broad: Do you believe that the right to privacy established in Griswald protects a woman’s right to have an abortion? A simple yes or no will do.

  18. Do you believe that the right to privacy established in Griswald protects a woman’s right to have an abortion? A simple yes or no will do.

    Even if the nominee did give you a simple yes or no to such a question (which I’m not sure they could do ethically), that wouldn’t tell you much. It is entirely possible to believe that the current state of American constitutional law is such that Griswold and Roe protect the right to an abortion while simultaneously believing that one or both were wrongly reasoned and should be overruled or modified. I’m sure if asked during her hearings if Bowers v. Hardwick prevented sodomy from being recognized as a constitutional right, Ruth Ginsburg could have agreed, but that wouldn’t have meant she bought into the reasoning of the opinion, and wouldn’t have prevented her from joining the majority in Lawrence v. TX, which overturned Bowers.

  19. Even a reasonable pro-choicer realizes that Roe was very bad law and the question of option for abortion (not “right”) is best left to state government.

    I know someone’s already said it, but that’s really not true. A strong majority of Americans don’t want to see Roe overturned. And I’m not even going to go near the “Roe is bad law” argument. Do you really believe that there exists no Constitutional right to privacy? And please don’t respond with “nowhere in the Constitution does it say the word ‘privacy’.” Nowhere in the Constitution does it say a whole lot of things that we widely accept as rights.

    Now, we can disagree all day long about whether or not a right to privacy exists. I think it’s pretty clear that it does. Perhaps you don’t. Ok. The question here is whether or not Alito is misrepresenting his views, and what he would actually do was he appointed to the court. And to me, that looks fairly clear.

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