Opening Argument – Honest Nominees and Artless Dodgers

National Journal

"Judge Alito, in 1985, you wrote that the Constitution — these are your words — ‘does not protect a right to an abortion.’ You said [today] that those words accurately reflected your view at the time. Now let me ask you: Do they accurately reflect your view today? … Why can’t you answer the question?" – Sen. Charles Schumer, D-N.Y.

"Because … the issue of abortion has to do with the interpretation of certain provisions of the Constitution." – Judge Samuel Alito

Again and again, Schumer and others pressed the question. Again and again, Alito ducked and dodged. The questions seemed fair. The answers seemed lame, evasive, even infuriating, to those of us who want straight answers. So how can I persist in my admiration of Alito? And how can I continue to credit the virtually unanimous views of people well acquainted with him that this is a man of extraordinary honesty and integrity?

The answer is that the confirmation process has been degraded to the point that I don’t think Alito or any other nominee of integrity — conservative, liberal, or moderate — could be confirmed if he or she gave direct and candid answers to every question about every issue.

Far-fetched? Let me explain.

Let’s start with the conservative Alito. Had he given Schumer a direct and candid answer, it would (I’d guess) have gone something like this:

Yes, I still believe that the Constitution does not protect a right to an abortion. And this is not an "outside the mainstream" view. It was the view of the vast majority of serious constitutional scholars when Roe was decided in 1973, including pro-choice liberals such as Archibald Cox and John Hart Ely.

They said, and I agree, that this divisive issue should have been left to the democratic process in the states — most of which would have legalized abortion long before now, both for their residents and for visitors from anti-abortion states. This remains the view of many pro-choice liberals today. And seven of the current justices, including Sandra Day O’Connor and Ruth Bader Ginsburg, have indicated disagreement with Roe.

But I also recognize that this is a precedent that the justices have repeatedly and forcefully reaffirmed over 33 years. And although most Americans favor some restrictions on abortion that Roe forbade, the vast majority don’t want Roe itself overruled.

It would be improper for me to prejudge any case. But I can tell you that I have no desire to destabilize the law and throw the country into turmoil. And I fear that overruling Roe would do both.

This is probably pretty close to the (private, if not public) view of most constitutional experts today. But in the strange cauldron that confirmation politics has become, it would probably doom Alito’s nomination.