Alito’s Open Mind Offends Democrats

January 12, 2006

Senate Democrats, visibly frustrated over their inability to extract a confession from Judge Samuel Alito that he would definitely vote to overrule Roe vs. Wade, further jeopardizing a woman’s “right” to terminate her baby’s life, have resorted to abject smear tactics.

Though Alito’s record, demeanor and reputation bespeak of an extraordinarily humble, decent, ethical and scholarly man, senators Kennedy, Schumer and Co. have strained to convince us he is an unethical rogue, among other things.

Aside from their pathetic attempts to taint him with the now familiar Vanguard, Concerned Alumni of Princeton and 10-year-old strip-searching red herrings, Alito’s circumspection over the abortion question drives them batty. It really frosts them that — in the words of Saint Theodore — “He didn’t back away one inch from his (1985) statement that a woman’s right to make her own reproductive decision is not protected under the Constitution.”

Sen. Chuck Schumer was similarly exasperated, pressing Alito on how he could answer without hesitation that the right to free speech is in the Constitution but demur on whether the “right to choose” is.

But with an equal absence of hesitation, Alito enlightened Schumer that the right to free speech and press, as distinguished from the so-called right to an abortion, were expressly guaranteed in the First Amendment.

This dubious constitutional “right” ultimately owes its genesis to certain nebulous language of Justice William Douglas in the 1965 case of Griswold vs. Connecticut. In Griswold, Douglas divined that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy.”

It’s much harder for me to comprehend Schumer’s failure to see a dramatic distinction between the two sets of “rights” — those of expression versus that of abortion — than Judge Alito’s recognition of the distinction. If anyone should have registered incredulity in that exchange, it is Judge Alito.

Indeed, it’s counterintuitive to categorize a woman’s “right” to abortion as flowing from her right to privacy since that formulation ignores the right of the baby, let alone the father. But couching this “right” in terms of privacy allows its proponents to perpetuate the illusion that a woman’s decision to terminate innocent life growing inside her is as purely exclusive to her and inconsequential to anyone else as, say, her decision to undergo plastic surgery.

But apart from their angst over Alito’s Neanderthal view of the “constitutional right to privacy,” the senators seem convinced he is lying in professing he would approach the Roe precedent with an open mind.

They wouldn’t hesitate to impose their pro-abortion policy views if sitting on the Court. So they have difficulty believing that justices who are personally pro-life would subordinate their personal preferences and be guided by dispassionate principles of constitutional interpretation.

I think it is entirely believable that Alito could write in 1985, as an executive branch advocate, that Roe should be overturned yet testify in 2006 that as a Supreme Court justice, he would approach abortion cases with an open mind.

The most ardent originalist scholars and judges generally have a deferential respect for Supreme Court precedent. They regard it as a monumental matter to overturn longstanding decisions, even if wrongly decided originally.

Equally significant, those with a restraint-oriented judicial philosophy are naturally predisposed against being predisposed on issues that might come before them. Engrained in them is the idea that the judiciary functions in a passive role. Before ruling on a matter, they await a real “case or controversy” between actual litigants.

It is against their philosophy even to flirt with considering how they might decide any case until it has come before them, they’ve become informed on the facts and law, and heard the arguments of the advocates.

I have little doubt that Judge Alito is personally against abortion and, as a matter of policy, probably believes it should be illegal, perhaps with certain exceptions. I further believe that he still thinks, like most legal scholars, that Roe was wrongly decided or wrongly reasoned.

But as a strong supporter of Judge Alito, and one who would like to see Roe overturned and the legality of abortion referred back to the several states, I think there’s a good chance — but am hardly sure — that Judge Alito would vote to overturn it. I honestly don’t think he knows, either, because he has no idea how such a case might eventually come before him.

The only ones who think they know for sure how Judge Alito would rule are the scoundrels interrogating him, as they readily project onto him their own willingness to rewrite the Constitution to conform to their policy agenda. Because of the flaws in their character and principles, they are apparently blinded to the gems in his.