Senator Specter seems to have caught Judge Alito in a bit of a waffle.
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?
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. ... 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.
So Judge Alito asserted that his 1985 statement represented him taking the position of his client. But, as Senator Specter pointed out, this wasn't quite true:
SPECTER: 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 [where Alito urged restriction and ultimate appeal of Roe], 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. (emphasis added)
So Judge Alito got caught in a slight lack of candor, and had to backpedal a bit. He made it clear that the position that the Constitution does not provide a basis for a woman's right to an abortion was his own
personal view. Either Judge Alito held this view in sincerity without regard to his client's position, or he pretended to hold this view in order to secure a promotion. The former is more likely. His use of the term "at the time" (he used it twice) also indicates a lack of candor, as it implies that today he might feel differently.
Judge Alito said that he would keep an open mind on the abortion issue, and that he would give weight to stare decisis (the doctrine that precedent ordinarily ought not to be overturned except for compelling reasons). But if currently holds the view that there is no constitutional basis for a right to an abortion, then the open mind and stare decisis won't mean very much, in practical terms.
Although a couple of senators touched on abortion, the first one to really return to Senator Specter's line of questioning was Senator Feinstein:
FEINSTEIN: In 1985, at the time you wrote the strategy memo on Thornburg, the court had already held that Roe, Akron, and eventually 30 other cases, that a woman had a constitutional right to choose whether to continue a pregnancy. In addition, in your memo, you specifically wrote that in the Akron case, the Supreme Court reaffirmed Roe. However, despite this, your memo outlined a strategy to eventually overturn Roe. My question is a little different from what you discussed somewhat yesterday: What was your view of precedent at the time you wrote that memo?
ALITO: Well, I think there are two things that I should say in response to that. The first is that I did not advocate in the memo that an argument be made that Roe be overruled. And therefore, the whole issue -- had the government proceeded with the argument that I recommended, the issue of stare decisis wouldn't have been presented. And so there wasn't any occasion for me to talk about stare decisis in the memo, and I did not talk about it. I think there's a mention of it in a footnote. So I didn't address it and there wasn't an occasion to address it. The second thing I would say is that stare decisis is a concern for the judiciary much more than it is for an advocate. An advocate is trying to achieve a result. And so for an advocate, stare decisis can be either a great benefit if it is in your favor, or an obstacle to get over. But it isn't the kind of issue that needs to be grappled with in the way in which a court has to grapple with stare decisis. (emphasis added)
I've read the portion of Judge Alito's response that I've underscored several times, and it makes no sense to me. Stare decisis is a
MAJOR concern for an advocate, especially for an appellate advocate. As any lawyer knows, any consequential legal proposition set forth in a brief has to be supported by legal authority. (This is at least good practice, and some courts make it
mandatory.) More often than not, the legal authority is a precedential rule in a published judicial opinion. If an advocate seeks to overturn an existing precedential rule, or distinguish an existing precedential rule, or clarify an existing precedential rule, or expand an existing precedential rule (and all three happen in the Supreme Court with great frequency), an advocate's "grappling" with stare decisis is
essential.
This was an exceptionally odd statement for Judge Alito to make. Too bad no one followed up on it.
