Alito Before Senate Judiciary Committee: Day Two
In wide-ranging give and take about abortion, warrantless wiretapping and domestic spying and abuse of power by the executive branch, Alito talked a lot while really saying very little of anything.
Sure, he went out on a limb and said that the Bill of Rights is still good during a war, but he also flat-out refused to say whether Bush was wrong for going around the law in ordering wiretaps without warrants as part of the war on terror.
On abortion, Alito said that the Roe V. Wade precedent is not binding and that "I would approach the question with an open mind and I would listen to the arguments that were made." But he still has not refuted his writings of 1985, which said that the Constitution does not include the right to an abortion.
"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 Reagan administration," Alito said, adding it also reflected his own belief.
One of my favorite parts came when Senator Herb Kohl (D-WI) asked Alito about the activism shown by the Supreme Court's conservative majority when they gave the 2000 presidential election to George W. Bush.
"I really don't know," said Alito. "I have not studied it in the way I would study a case that comes before me as a judge. And I would have to go through the whole judicial process."
Yeah, right. One of the most controversial cases in Supreme Court history and Alito's acting like he just heard about it. Kohl didn't buy it either.
"That was a huge, huge case. And I would like to hope and I would bet that you thought about it an awful lot, because you are who you are," pressed Kohl. "And I would like for you to give an opinion from the convictions of your heart. As a person who's very restrained with respect to judicial activism, this being a case of extreme judicial activism, were they correct in taking this case, in your opinion?"
"My honest answer is I have not studied it in the way that I would study the issue if it were to come before me as a judge," Alito replied.
Russ Feingold (D-WI) hit Alito right between the eyes with a direct question about the Bush administration's illegal wiretaps.
"Does the president, in your opinion, have the authority, acting as commander in chief, to authorize warrantless searches of Americans' homes and wiretaps of their conversations, in violation of the criminal and foreign intelligence surveillance statutes of this country?" asked Feingold.
Here's Alito's verbatim response:
"That's the issue that's been framed by the developments that have been in the news over the past few weeks. And, as I understand the situation, it can involve statutory questions, the interpretation of FISA and the provision of FISA that says that no wiretapping may be done except as authorized by FISA or otherwise authorized by law and the meaning of the authorization for the use of military force and then constitutional questions.So, in other words, you're not gonna answer the question, are you Judge?
"And those are issues, as I said this morning, that may well result in litigation. They could come before me on the Court of Appeals for the 3rd Circuit. They certainly could come before the Supreme Court. And those are weighty issues involving two of the most important considerations that can arise in constitutional law, the protection of the country and the protection of people's fundamental rights. And I would have to know the specifics in the arguments that were made."
In my mind, the best exchange of the day on abortion was when Chuck Schumer (D-NY) challenged Alito point blank on whether the views he held in 1985 are the same views he holds today.
"Judge Alito, in 1985, you wrote that the Constitution -- these are your words -- does not protect a right to an abortion," said Schumer "You said to Senator Specter a long time ago, I think it was about 9:30 this morning, 9:45, that those words accurately reflected your view at the time. Now let me ask you: Do they accurately reflect your view today? Do you stand by that statement? Do you disavow it? Do you embrace it? It's OK if you distance yourself from it, and it's fine if you embrace it. We just want to know your view."
Alito danced so much around this one that he and a frustrated Schumer went back and forth for a few minutes. I've tried editing the dialog for inclusion in this piece and it's too long and too good to edit. I'll follow this post with another containing the entire dialog.
The day ended with some satisfied Republicans.
"You've done a great job; you've been very forthcoming," an ebullient Senator Lindsey Graham (R-SC) told Alito.
Democrats knew they had heard nothing of substance and we're not quite as thrilled.
"We're going to keep asking questions until we find out specific answers to how he feels about major issues confronting Americans today," said Schumer.
One of the funniest moments was when Senator Patrick Leahy (D-VT) was asking Alito about Bush administration spying on Vermont Quakers who have been protesting the Iraq war.
"Now, I don't know why they spent all that money to do that," said Leahy. "If they wanted to find a Vermonter protesting the war, turn on C-SPAN. I do it on the Senate floor all the time."