Almost lost amid the cacophony of Senate posturing, spousal tears and lingering suspicions over his membership in an arch-conservative college alumni group was Judge Samuel Alito’s disappointing refusal to ease concerns over the future of women’s reproductive rights.
Peppered about his views on abortion rights, Alito has told the Senate Judiciary Committee that while he respects legal precedents, they can always be overturned. We agree with that as a legal principle, but we favor maintaining the precedent actually under discussion – Roe vs. Wade, the 1973 Supreme Court abortion rights decision.
Alito’s attitude was in stark contrast to that of Chief Justice John Roberts, who during his confirmation hearings described Roe as settled law. Alito wouldn’t say any such thing. His reticence may reflect his hope to reverse Roe, or perhaps it is simply an acknowledgment of the influence of the anti-abortion forces who upended Harriet Miers’ bid to the U.S. Supreme Court and opened the door for him.
Alito seems likely to win his place on the court without meeting Miers’ fate – or a Democratic-led filibuster, but he has stirred some anxiety. Republican Majority for Choice, a group that lists five GOP senators on its advisory committee, now says it will oppose his nomination. Arlen Specter, R-Pa., pro-choice head of the Judiciary Committee and a member of the group, hasn’t said how he’ll vote.
It played out differently with Roberts, who disarmed skeptics during his confirmation process by saying that Roe is settled law, and “well beyond that, it is settled as a precedent of the court entitled to respect under the principle of stare decisis,” a Latin term meaning to stand by a decision.
Alito voiced opposition to Roe as long ago as 1985, but we’re hoping that, like Roberts, he can now view the issue in a modern context, aware that after 33 years a large majority of Americans favor choice and that Roe has survived many legal challenges.
Another ongoing subject during the Alito hearings was in the arena of executive powers. Alito sought to deflect concerns over his support for a controversial theory known as the “unitary executive,” but it is worrisome that he couldn’t or wouldn’t more forcefully defend the judiciary’s right to check the executive and legislative branches of government.
Roberts put himself forward as a practical jurist who would bring an open mind and independent bearing to his tenure on the high court.
Alito is a work in progress as senators contemplate the force of his testimony and the course of his nomination.
