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On first day of questioning, Alito says judiciary is not ‘not a law-making body’; pledges ‘open mind’ on abortion cases

Updated Jan. 10, 6:54 ET

WASHINGTON (BP)–Supreme Court nominee Samuel Alito said comments he made in 1985 about the Roe v. Wade abortion decision were true but were made as an attorney and not as a judge, and that if an abortion case were to come before him on the high court he would approach it with an “open mind.”

The Senate judiciary committee began its first day of questioning Alito on Tuesday, and Chairman Arlen Specter, R.-Pa., wasted no time in getting to the issue of abortion. In 1985, while serving in the Reagan administration, Alito wrote a document advocating the overturning of Roe v. Wade, the infamous 1973 decision that legalized abortion nationwide. Specter is pro-choice.

“That was a correct statement of what I thought in 1985 from my vantage point in 1985,” Alito said. “And that was as a line attorney in the Department of Justice in the Reagan administration. Today, if the issue were to come before me — if I were fortunate enough to be confirmed and the issue were to come before me — the first question would be the issue that we’ve been discussing, and that’s the issue of stare decisis. If the analysis were to get beyond that point, then I would approach the question with an open mind.”

Stare decisis is the legal principle that says a court should not overturn its own decision unless there is a strong reason to do so.

Specter asked, “So, you would approach [an abortion case] with an open mind, notwithstanding your 1985 statement?”

“Absolutely, Senator,” Alito responded. “That was a statement that I made at a prior period of time when I was performing a different role…. [W]hen someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points of your legal career and think about legal issues the way a judge thinks about legal issues.”

Although Specter spent most of his 30 minutes questioning Alito on the issue of abortion, other senators during the morning session chose to focus on other topics. Each senator gets half an hour in the first round of questioning and will get 20 minutes in the second round.

Alito made several comments that are sure to gain the praise of conservatives, including his belief that the “judiciary is not a law-making body” and his rejection of using foreign law in constitutional interpretation.

But the issue of abortion provided one of the day’s highlights.

Quoting legal scholars, Specter argued that Roe v. Wade amounts to a “super stare decisis” that should not be overturned because Americans have come to rely on it.

“I personally would not get into categorizing precedents as super precedents or super duper precedents,” Alito said, referencing a comment Specter made during the John Roberts hearings in which the Pennsylvania senator used the term “super duper” regarding to Roe. “I agree with the underlying thought, that when a precedent is reaffirmed, that strengthens the precedent.”

“How about being reaffirmed 38 times?” Specter asked, alluding to what he said is the number of times the Supreme Court has had the opportunity to overturn Roe.

“[E]ach time it is reaffirmed,” Alito said, “that is a factor that should be taken into account in making the judgment about stare decisis.

“… Now, I don’t want to leave the impression that stare decisis is an inexorable command, because the Supreme Court has said that it is not.”

Later in the day, Sen. Mike DeWine, R.-Ohio, disagreed with Specter’s count of 38 cases in which the court reaffirmed Roe. DeWine, who is pro-life, said that of those cases, he had counted only four in which the court “directly addressed the status of Roe as binding precedent.” DeWine disagreed with Specter’s “super precedent” label.

Specter also quoted from the 1992 Planned Parenthood v. Casey case, which affirmed Roe. Specter quoted a section from the majority opinion saying that the court should not overturn a decision simply because of public pressure. That, the majority said, would “subvert the court’s legitimacy.”

“All of the federal courts should be insulated from public opinion,” Alito said. “They should do what the law requires in all instances. That’s why the members of the judiciary are not elected…. The legitimacy of the court would be undermined in any case if the court made a decision based on its perception of public opinion. It should base its decisions based on the Constitution and the law.”

Sen. Charles Schumer, D.-N.Y., also questioned Alito on abortion, but not with the courtesy that Specter had shown Alito. On at least one occasion Specter told Schumer to allow Alito to finish his answer.

Schumer quoted Alito’s 1985 views on abortion, then asked, “Do you believe that now? … I think that’s important to know.”

“The answer to the question,” Alito responded, “is that I would address that issue in accordance with the judicial process as I understand it and as I have practiced it.”

Alito again mentioned his view of stare decisis and judicial review.

Frustrated, Schumer eventually asked, “Does the Constitution protect the right to free speech?”

“Certainly it does,” Alito said.

“Well, why can’t you answer the question of, ‘Does the Constitution protect the right to an abortion …?'” Schumer asked.

“Because,” Alito responded, “answering the question of whether the Constitution provides a right to free speech is simply responding to whether there is language in the First Amendment that says that freedom of speech and freedom of the press cannot be abridged. Answering about the issue of abortion has to do with the interpretation of certain provisions of the Constitution.”

Said Schumer: “[W]e can only conclude that if the question came before you, it is very likely that you would vote to overturn Roe. v. Wade.”

On other topics:

— Alito said the role of the judiciary is limited.

“The judiciary has to protect rights and it should be vigorous in doing it, and it should be vigorous in enforcing the law and interpreting the law … and in enforcing the law, even if that’s unpopular. But although the judiciary has a very important role to play, it’s a limited role. It should always be asking itself whether it is straying over the bounds, whether it is invading the authority of the legislature, for example, [and] whether it is making policy judgments rather than interpreting the law. That has to be a constant process of re-examination on the part of the judges.”

Alito also said judges have to respect “judicial self-restraint.”

“[T]here aren’t very many external checks on the judiciary on a day-to-day basis,” he said. “So the judiciary has to restrain itself…. The judiciary is not a law-making body. Congress is the law-making body. Congress has the legislative power, and the judiciary has to perform its own role, and not try to perform the role of Congress or the executive [branch].”

— Alito expressed a dislike for the use of foreign law in judicial opinions.

“I don’t think there are insights to be provided on issues of American constitutional law by examining the decisions of foreign courts. … [O]n issues of interpretation of our Constitution, I don’t think that that’s useful.

— Referencing comments he made in the late 1980s, Alito said he had some disagreements with the views of former Supreme Court nominee Robert Bork, a hero of many conservatives.

“There are issues with which I probably agree with Judge Bork, and there are a number of issues on which I disagree with him,” Alito said.

A statement from the late 1980s in which Alito praised Bork drew the attention of Sen. Herb Kohl, D.-Wis. Kohl said Bork believed: that Americans had no constitutional right to contraception and no constitutional right to have their votes counted equally: that the executive branch should have more power; and that Roe v. Wade should be overturned.

“Most of the things that you just mentioned are points on which I would disagree with him,” Alito said, mentioning his disagreement with Bork on rulings regarding contraception; the concept of one person, one vote; and executive power. He did not say whether he agreed or disagreed with Bork on Roe v. Wade.

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  • Michael Foust