Pro-Choice Senators
and Judge Alito
EDITORIAL, NYTimes on
the Web, January 13, 2006
There are many reasons
to be concerned about the nomination of Judge Samuel Alito Jr. for the Supreme
Court, but for a small group of moderate Republicans who strongly identify
themselves as supporters of abortion rights, there is a special problem:
if Judge Alito gets to the court, there is every reason to believe that he will
vote to overturn Roe v. Wade when the opportunity comes.
In 1985, when he was a 35-year-old government lawyer, Judge Alito stated that
the Constitution did not protect abortion rights, and that he was "particularly
proud" of his legal work arguing that the Constitution did not confer the right
to an abortion. There is now ample evidence that he continues to hold that
view.
He refused time and again in this week's hearings to call Roe "settled law."
That's a giant red flag because he did say that the one-person-one-vote cases,
which he denounced in the same 1985 memo -- and many other decisions -- are now
settled law. In sharp contrast, as Senator Dianne Feinstein, Democrat of
California, underscored, Chief Justice John Roberts Jr. said at his Supreme
Court confirmation hearing last year that Roe was settled law.
There was a telling moment at the start of the Alito hearings when Senator Arlen
Specter, the committee chairman, offered Judge Alito a way out. He asked
whether Judge Alito believed, as some commentators do, that the Supreme Court's
1992 ruling in Planned Parenthood v. Casey, strongly reaffirming Roe,
made Roe a "super-precedent" -- and therefore rendered the judge's 1985 views
obsolete.
But Judge Alito would not give Senator Specter, who supports abortion rights,
even that small bit of comfort, saying he did not believe in super-precedents.
All of that should make things hard for Senator Specter and for three moderate
Republicans -- Lincoln Chafee of Rhode Island, and Olympia Snowe and Susan
Collins of Maine -- who have said they will oppose any nominee committed to
overturning Roe.
Judge Alito's assertions that he will keep an open mind on Roe are little
comfort. With nearly 70 percent of Americans saying in a recent Harris
poll that they would oppose Judge Alito's confirmation if they thought he would
vote against constitutional protection for abortion rights, he was not likely to
say at his hearings that he would do so. Few nominees would be so brave or
foolhardy.
As a result, senators have to try to forecast the behavior of a nominee like
Judge Alito, who comes with a clear record of opposition to abortion rights and
strong support from the anti-abortion movement.
The single most important thing a senator can do to support abortion rights is
to vote against Supreme Court nominees who would take such rights away.
Given Judge Alito's record and his testimony, it is hard to see how Senators
Specter, Chafee, Snowe and Collins -- or any other pro-choice senators -- can
call themselves strong advocates of abortion rights if they support him.
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