Further Thoughts on the Alito Hearings

I'm composing these remarks in the early afternoon on Friday. The Senate Judiciary Committee is hearing from witnesses for and against the nomination of Judge Samuel Alito, Jr. to replace Sandra Day O'Connor as an associate justice on the United States Supreme Court. I'd like to offer a few impressions of what, like you, I have heard since last Monday.

There will never be, I suspect, a nominee sent to the committee by a Republican President, who is not charged with vagueness/unresponsiveness/evasion. But what does that really mean?

Richard W. Garnett, associate professor of law at Notre Dame Law School, brilliantly illuminated what critics mean by this earlier today on Nationalreview.com

" E.J. Dionne complains, in a [Washington Post] column-- 'A Hearing About Nothing'-- in today's Post about a 'listless intellectual fog' that, he thinks, surrounded the Alito hearings and contends that 'Alito, an ardent baseball fan, established himself as the Babe Ruth of evasion." This is so tiresome. What Dionne means-- and what the hilariously disingenuous Democratic senators mean when they moan about a nominee's "evasions"--is that the nominee failed to recite to their satisfaction what Professor Jack Balkin has called the 'constitutional catechism.' in which the rightness of Roe comes right after the opening 'credo,' that the nominee somehow managed to restrain himself from brutally slicing and dicing the legal knowledge of Senators reading staff-written inquisitions; and that the nominee refused to do what (they know full well) every good judge should refuse to do, namely, make pledges or commitments about how he would rule on a disputed question likely to come before the Court. Or, to really get to the point: The complaint that a nominee was 'evasive' is another way of saying that 'a nominee who I fear will not constitutionalize my policy preferences performed intelligently and carefully.'"

There is nothing else to be added. Except to emphasize that Alito was actually quite forthcoming. Indeed, on one occasion he mused, almost as if thinking aloud, that he might have been TOO forthcoming.

You cannot watch the man for any length of time and miss what is obvious. Judge Alito is an extremely thoughtful man who is careful in his choice of words.

The pro-abortion Senate Judiciary Democrats (i.e., all committee Democrats) keep insisting, as do their allies in the media, that Judge Alito and [now] Chief Justice John Roberts were saying distinctly different things about whether Roe v. Wade is "settled law." They aren't. Alito went the extra step so as not to leave any mis-impressions.

He carefully delineated the steps he would take should Roe--or any other case--come before him as a justice of the Supreme Court. Alito thoughtfully laid out the role of stare decisis--giving weight to prior precedents--and then made what ought to have been to any reasonable person an unobjectionable answer: it's " a general presumption that courts are going to follow prior precedents" but "not an exorable command."

How else would noxious decisions such as Dred Scott and Plessy v. Ferguson be overturned? Geez.

Just one other observation so we can all get back to watching the final witnesses. Anyone who has watched these proceedings KNEW that the Democrats would play the race card, the last refuge of pro-abortion scoundrels when faced with a judicial nominee who refuses to pledge allegiance in advance to upholding Roe. But as a stream of witnesses, including African Americans, demonstrated, Judge Alito is a fair-minded man who treats everyone with respect and dignity.

Consider what a black Clinton appointee said about Judge Alito. Timothy Lewis, a former Third Circuit Judge, said of himself that he is appropriately on the "far left" of the panel of testifying judges. Lewis also described himself as "openly and unapologetically pro-choice."

Yet he affirmed Judge Alito's "intellectual honesty": "I cannot recall one instance when Judge Alito displayed anything remotely approaching an ideological bent."

That several of the Committee Democrats would substitute ugly slurs for intelligent inquiries hardly comes as a surprise. Only marginally less surprising was that several of them simply were unable to do anything other than ramble on and on and on and on. No peacock ever preened more fully.

As I write this, the sequence of events is unclear--that is, we don't know for sure whether the Democrats will try one or another stalling tactic. Let's hope not.

After the performances they put on, the very least they can do for the American people is give Judge Alito a timely up or down vote.

If you have any comments please send them to me at dandrusko@nrlc.org.