Oh boy, some great stuff today. Lots of "code."
By "code," I mean that there is a lack of straight talk in both questions and answers. The subjects are very clear, but the talk ain't straight.
DURBIN: Is it [Roe v. Wade] the settled law of the land?
ALITO: If settled means that it can’t be reexamined, then that’s one thing. If settled means that it is a precedent that is entitled to respect as stare decisis and all of the factors that I’ve mentioned come into play, including the reaffirmation and all of that, then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis in that way.
DURBIN: How do you see it?
ALITO: I have explained, Senator, as best I can how I see it. It a precedent that has now been on the books for several decades. It has been challenged. It has been reaffirmed. But it is an issue that is involved in litigation now at all levels. There is an abortion case before the Supreme Court this term. There are abortion cases in the lower courts. I’ve sat on three of them on the Court of Appeals for the 3rd Circuit. I’m sure there are others in other courts of appeals or working their way toward the courts of appeals right now. So it’s an issue that is involved in a considerable amount of litigation that is going on.
This was an astonishingly evasive answer. If Judge Alito is willing--as he apparently would be--to re-examine the legal underpinnings of Roe, then Roe would be not be settled, and arguably would not be law. Judge Alito then tried to muddy the water by saying (1) that he has already talked in detail about how he sees Roe, which he hadn't (in other words, Senator Durbin was not going over ground previously covered) and (2) the issue is coming up on appeal, meaning "Don't press me for details, because you won't get any."
(Judge Alito was pressed and pressed on the question by others, and in answer to Senator Feinstein, gave an answer that was a little closer to the answer he should have given in response to Senator Durbin. Basically, he said that if someone argues that Roe ought to be overturned, he'd listen to what they had to say.)
And yet, Judge Alito seemed to be happy to return to the issue of precedent when questioned by an unabashed supporter:
BROWNBACK: Brown v. Board of Education ... overturned Plessy [v. Ferguson]. Plessy had stood on the books since 1896. ... You’ve got it sitting on the books for 60 years, twice the length of time of Roe v. Wade. You’ve got these number of cases that considered Plessy and upheld Plessy to the dependency. And yet Brown comes along, 1950s case, poor little girl has to walk by the all-white school to go to the black school in Topeka, Kansas. And the court looks at this and they say, unanimously, that’s just not right. Now, stare decisis would say in the Brown case you should uphold Plessy. Is that correct?
ALITO: It was certainly -- would be a factor that you would consider in determining whether to overrule it.
BROWNBACK: But obviously...
ALITO: Doctrine that would consider.
BROWNBACK: Obviously, Brown overturned it, and thank goodness it did. Correct?
ALITO: Certainly.
BROWNBACK: It overturned all these super-duper precedents that had been depended upon in this case, because the court got it wrong in Plessy. Is that correct?
ALITO: The court certainly got it wrong in Plessy, and it got it spectacularly wrong in Plessy. And it took a long time for that erroneous decision to be overruled.
Okay, everybody got that? There's a comparison here between Brown v. Board of Education and Roe v. Wade. They're talking Brown, but they're thinking Roe. Can anybody see what's wrong with this picture?
Senator Brownback, after discussing Judge Alito's decisions in some cases involving religious issues, resorted to some additional code:
BROWNBACK: What do you believe is Congress’ power to define the jurisdiction of the Supreme Court under the exceptions clause?
Right now, this issue is "hot" in only one arena: destroying separation of church and state. Senator Brownback is effectively asking Judge Alito, "If we remove all judicial remedies for government violations of the Establishment Clause thereby making the First Amendment guarantees empty promises, you aren't going to strike that down, are you?" Judge Alito answered--correctly--that the extent of the exceptions clause is largely unresolved.
I found this exchange to be of interest:
COBURN: And I was interested in Senator Kyl asked you yesterday about foreign law, something that is extremely disturbing to a lot of Americans; that many on the Supreme Court today will reference or pick and choose the foreign law that they want to use to help them make a decision to interpret our Constitution, where, in fact, the oath of office mentions no foreign law....
ALITO: Well, I don’t think that we should look to foreign law to interpret our own Constitution. I agree with you that the laws of the United States consist of the Constitution and treaties and laws and, I would add, regulations that are promulgated in accordance with law. And I don’t think that it’s appropriate or useful to look to foreign law in interpreting the provisions of our Constitution. I think the framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of the countries of the world. The purpose of the Bill of Rights was to give Americans rights that were recognized practically nowhere else in the world at the time. The framers did not want Americans to have the rights of people in France or the rights of people in Russia or any of the other countries on the continent of Europe at the time. They wanted them to have the rights of Americans.
First, this is more code. The subject being discussed is last term's decision about applying the death penalty to minors. And Judge Alito, I submit, characterized that case incorrectly.
Second,
damn right the framers would be stunned. When the framers were doing their framing, there were virtually no civilizations that applied democracy to a republican form of government. Kings vastly outnumbered presidents. Protection of individual rights (sometimes called natural rights) was a developing concept, and few governments protected them. But after 200 years, the situation has changed. Today, governments applying democracy and/or republican principles are the majority. Individual rights protections, nonexistent in the 1770s, now exist in many countries and are recognized as international ideals.
This indicates some of the hazards associated with trying to "read the minds" of the framers (as Justices Scalia and Thomas are fond of saying they are able to do). So the framers would have been stunned. So what? Things have changed internationally in some 200+ years. It would have been nice if someone would have followed up on that notion... but no one did.
Returning to abortion, Senator Kyl (Republican from Arizona) summed up Judge Alito's position:
KYL: In another area, it is apparent to me that you’re simply not going to be able to satisfy some of my colleagues because you will not absolutely commit to rule the way that they want to on a couple of key issues; for example, on the issue of abortion. You’ve repeatedly confirmed the significance and the role of precedent, in this case Roe v. Wade. You also noted situations in which as a 3rd Circuit Court judge, you adhered to the Roe v. Wade precedent. But you have declined to announce your constitutional view of Roe today, despite repeated attempts by some of my colleagues to get you to do that in these hearings.
From this, Senator Kyl draws an interesting conclusion:
Implied in your answer is the point that to do that here would commit you to a particular result, something you cannot ethically do.
It is true that Judge Alito has taken the official stand that he would not be "result-oriented," saying "It’s not my job to change the law or to bend the law to achieve any result." (Today, however, he did say something a little awkward: the judicial process, he said, "is designed, and I believe strongly in it, to achieve good results, to achieve good decision-making.") But it seems to me that Senator Kyl draws the opposite conclusion from what Judge Alito has said. Judge Alito has said what his own views were on the constitutional underpinnings of Roe, and he did not back down from them. (See Senator Schumer's cross-examination-like questioning for further instances where Judge Alito preferred to evade rather than back down.) He thought Roe was wrong. He has also indicated that he would vote to overturn a long-standing precedent if he felt it was wrong. Those who are looking for a result-oriented justice who would take a swipe at abortion rights must be delighted with Judge Alito's answers. Who does Senator Kyl think he's kidding?
Senator Kohl (Democrat from Wisconsin) pressed the issue a little more. Judge Alito talked about his views on school integration and Brown v. Board. He talked about how he felt about "One man, one vote." But when it came to abortion, Judge Alito was not as forthcoming:
KOHL: And yet when you are asked about Roe v. Wade and the following case of Casey, cases that say the government should not place an undue burden on a woman’s right to choose, when we asked about principles of that sort, you are unwilling to make the same statement of support. Now, I understand that there will be cases where plaintiffs argue on the margins about Roe and Casey, where there are efforts to narrow or broaden these principles, just as there are cases that narrow or broaden the principles of one man, one vote, or the issue enunciated in Brown v. Board of Education, or Griswold. But you are willing to stand by those other legal principles, and yet you’re not taking the same position with regard to the principles embodied in Roe and Casey. Could you explain that, please?
ALITO: Senator, I think it’s important to draw a distinction between issues that could realistically come up before the courts and issues that are still very much in play, which is to say is subject of litigation in the courts. And I felt comfortable about commenting on one person, one vote and, of course, Brown v. Board of Education, because those are not issues that are any longer the subject of litigation in our country, not the fundamental principles that are embodied in those decisions. And the Griswold case, likewise, concerns an issue that is not realistically likely to come before the courts. Roe, on the other hand, involves an issue that is involved in a considerable amount of litigation before the courts, and so that’s where I feel that I must draw the line. Because on issues that could realistically come up, it would be improper for me to express a view and I would not reach a conclusion regarding any issue like that before going through the whole judicial process that I described.
This is a surprising assertion, because (1) it seems to distance Roe from other decisions, in effect, saying that some decisions are more "settled law" than others and (2) it asserts that certain issues--school desegregation, voting, privacy--are "not realistically likely to come before the courts." In fact, the Supreme Court addresses issues of this kind in almost every term, and the opinions often go to the fundamental principles of these precedents. It is true that few advocates try to urge the Court to overrule cases such as Brown (which would be a highly questionable appellate strategy), but the legal issues are still very much "in play." (Senators Feinstein and Schumer also thought this assertion by Judge Alito about why he was more open about other issues than he was about abortion was highly questionable.)
Then there was this inadvertently humorous bit from Senator Sessions. After going on a tirade about Michael Newdow and his Pledge cases, Senator Sessions concluded by saying that he didn't think Newdow's suits were based on the constitution and he would ask Judge Alito NOTHING about that. Instead, he asked this:
SESSIONS: The doctrine of judicial review, Marbury v. Madison -- you already indicated Hamilton didn’t favor that. But the court found that it’s not expressly stated in the Constitution, is it?
ALITO: No, it’s not.
SESSIONS: And it definitely shifts the balance of power between the branches, because the court now has the power to, by a stroke of its pen, five of its nine members to strike down any law they say violates the Constitution. That’s true, is it not?
ALITO: They decide constitutional questions, and the doctrine has been established since Marbury v. Madison. That’s right.
Whoa. Is Senator Sessions suggesting that Marbury v. Madison ought to be overruled for lacking a constitutional foundation? If there is any such thing as a "super-duper precedent" (a term coined by Judge Alito yesterday), Marbury is it (as Senator Dewine remarked yesterday). Marbury is widely regarded as the greatest constitutional decision ever made, a true work of genius. Marbury is traditionally the very first case discussed in constitutional law books. A giant full-body statue of Justice Marshall, author of Marbury, resides in the lower floor of the Supreme Court building. The Marbury decision is perhaps the closest thing that the Supreme Court holds to sacred and untouchable. Yet Senator Sessions seems to think that judicial review is somehow "activist" (gasp!), a position with which Judge Alito disagreed yesterday. And yet, today Judge Alito said:
ALITO: Well, Senator, I think your policy views are much more legitimate than the policy views of the judiciary because members of Congress are elected for the purpose of formulating and implementing public policy and members of the judiciary are appointed for the purpose of interpreting and applying the law.
As a final matter, Senator Durbin asked questions about Judge Alito's views of the Establishment Clause. There are some encouraging remarks:
ALITO: The government itself cannot speak on religious matters, but the government also can’t discriminate against private religious speech.
... but there are other remarks that are evasive or very troubling, especially as to what "private religious speech" is. As Senator Durbin pointed out, and Judge Alito agreed, an official school board policy in which the students could vote on whether they would be led in prayer (with the majority voting in favor of having a prayer, of course) was somehow "private religious speech." When asked about this, Judge Alito's response was almost impossible to follow:
DURBIN: How, then, could you respect the rights of the minority, including people with different religious beliefs and nonbelievers, if you leave it up to a majority vote?
ALITO: Well, that factor is why it was a case that didn’t -- there could be a debate about which side of this line it fell on. Now, I think there also was a disclaimer that was distributed at the time of the graduation explaining to anybody who was in attendance that the prayer was not endorsed -- if there was a prayer, it wasn’t endorsed by the school board and that this was a decision of the students. There are factors there that fall on one side of the line. There are factors there that point to the case being put on one side of that line, factors that point to putting the case on the other side of the line. And Judge Mansmann’s opinion explained why she thought -- and I agree that it would fall on the private student speech side of the line. But it was a question that was debatable. And then the Santa Fe case came along later. It didn’t involve exactly the same situation, but it involved the related situation -- and that is now the Supreme Court’s expression of its opinion in the form of a precedent on the application of this test that I’ve been talking about, a situation like this.
