Judge Alito's Hearings

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Friday, January 13, 2006

JUDGE SAMUEL A. Alito Jr. wrapped up three grueling days of testimony before the Senate Judiciary Committee yesterday. The hearings were less illuminating than one might have hoped. Democratic senators often seemed more interested in attacking the nominee -- sometimes scurrilously -- than in probing what sort of a justice he would be. Even when they tried, their questioning was often so ineffectual as to elicit little useful information. Republican senators, meanwhile, acted more as fatuous counsels for the defense than as sober evaluators of a nominee to serve on the Supreme Court. On both sides, pious, meandering speeches outnumbered thoughtful questions. And the nominee himself was careful, as most nominees are, not to give much away. The result is that Americans don't know all that much more about Judge Alito than they did before.

Still, the hearings provided some useful information. For starters, Judge Alito, though not as polished as Chief Justice John G. Roberts Jr., was fully versed in constitutional and statutory law. When President Bush nominated Harriet Miers, many commentators worried that under the glare of the hearings, she would not seem up to the job of a justice. Judge Alito's intellect and qualifications have never been the subject of similar controversy, and these hearings showed why. He is in command of the diverse subject matter with which federal courts deal, conversant in the details of his own decisions and knowledgeable about constitutional history. This may be a mere baseline qualification for confirmation, but it is an indispensable baseline.

On substantive matters, the hearings contained some reassurance for those anxious about the degree of Judge Alito's conservatism. He persuasively explained writings from before his judicial service that seemed to question the Warren Court's famed reapportionment cases -- leaving no reason to worry that he has ambitions to upend the principle of one man, one vote. He similarly made clear that his phraseology was "inapt" when he referred to the "supremacy of the elected branches of government," clarifying that he believes the courts are an equal branch of government in a system of separated powers. His testimony concerning allegations of impropriety in connection with his having sat on a case involving the Vanguard Group revealed the frivolousness of the charge. While his membership in the retrograde Concerned Alumni of Princeton is troubling, a late-night committee investigation into the records of that group backed up his story that he was not an active member. Finally, Judge Alito repeatedly affirmed his commitment to following the court's precedents, to the value of stability in American constitutional law, and to the principle of stare decisis that embodies respect for the court's past holdings.

On other subjects, Judge Alito was less reassuring. While he accepted that the Constitution contains a right to privacy and professed agreement that this right protects the use of contraception, his testimony concerning abortion rights had a different tone from that of Chief Justice Roberts. The difference may be purely tonal. Both declined to say how they would handle the issue, and both emphasized that the court's abortion precedents were due respect. Yet Judge Alito also emphasized repeatedly that stare decisis is not an "inexorable command" and he resisted describing Roe as a "settled" matter.

In addition, his testimony will do little to allay concerns about whether his views of executive power are too broad; he offered little more than platitudes about how the president is not above the law. And his views of the scope of federal power under the commerce clause remain in doubt.

In short, the hearings probably changed few minds. But then, it's not clear how many minds were open before they began.


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