The senator
was expressing frustration over a process that doesn't work. It
turns out that, especially when their party controls the process,
Supreme Court nominees can avoid answering any question they don't
want to answer. Senators make the process worse with meandering
soliloquies. But when the questioning gets pointed, the opposition
is immediately accused of scurrilous smears. The result: an exchange
of tens of thousands of words signifying, in so many cases, nothing
-- as long as the nominee has the discipline to say nothing,
over and over and over.
Alito, an
ardent baseball fan, established himself as the Babe Ruth of evasion.
The headlines
went to the abortion issue. Alito was pressed about his statement
in a 1985 job application letter to the Reagan administration
that ``the Constitution does not protect a right to an abortion.''
It is a perfectly reasonable view shared by millions of Americans.
Republican Sens. Sam Brownback and Tom Coburn were refreshingly
open in their denunciations of Roe v. Wade.
But Alito
would neither embrace nor back away from what he had said. He
did allow that ``there is a general presumption that decisions
of the court will not be overruled.'' Well, yeah.
When Sen.
Dianne Feinstein asked Alito if the issue was ``well settled in
court,'' he offered the celebrated formulation: ``I think that
depends on what one means by the term 'well settled.'''
The standard
dodge is that nominees can't answer questions bearing on cases
they may later have to decide. But Democrats Feinstein, Richard
Durbin and Charles Schumer all noted that Alito was perfectly
happy to speak expansively on some questions he will face, notably
reapportionment.
Sen. Joe
Biden, much mocked for his prolix prattling in the early going,
actually made a pithy observation on Thursday. He said nominees
``tend to answer controversial questions in direct proportion
to how much they think the public is likely to agree with them.''
Conservatives
are right that our abortion debate is distorted because Roe
v. Wade has forced too much discussion into the limited confines
of Senate hearings over future judges. But that doesn't make the
circumlocutions any more satisfactory. Conservative appointees
who might well overrule Roe can't quite say so if they
are to get the votes they need from Republican senators who support
abortion rights and want to protect themselves with pro-choice
voters.
That was
just one of many evasions. When Sen. Patrick Leahy asked if ``the
president has the power to curtail investigations, for example,
by the Department of Justice,'' Alito replied: ``I don't think
the president is above the law.'' A fine sentiment that didn't
answer the question. Leahy asked on Thursday if Congress could
strip the courts of their authority to rule on cases involving
the First Amendment. Alito didn't have a view.
When Biden
asked Alito about John Yoo's very expansive reading of presidential
power, Alito said he had not read the former Justice Department
official's recent book, even though Yoo's views have long been
well-known.
And there
was something odd about Alito's memory hole concerning his membership
in Concerned Alumni of Princeton, a right-wing group whose publications
said some rather unpleasant things about blacks, women and gays.
Alito didn't remember anything, but if he did remember something,
his membership might have been related to Princeton's decision
to throw ROTC off campus, even though parts of ROTC later returned.
The first public reference I can find to the ROTC rationale came
not from anything Alito said in the past, but from talking points
put out Monday by Republican National Committee Chairman Ken Mehlman.
My biggest
worries about Alito are how he would rule on presidential power,
worker rights, civil rights and regulatory issues. Cass Sunstein,
a University of Chicago law professor, has noted that Alito follows
the law when it's clear, but almost always tilts toward his conservative
predilections when the law is less settled.
Democrats
seem to be wary of mounting a filibuster. What they should insist
upon, to use a euphemism Alito might appreciate, is an extended
debate in which his evasions will be made perfectly clear to the
public. If moderate senators want to vote for a justice highly
likely to move the Supreme Court to the right, they can. But their
electorates should know that's exactly what they're doing.
