The following article appeared in Human Life Review, Winter 2006. A few changes/updates have been made for this posting. Copyright © 2006 by Mary Meehan.

Lessons from the Alito Hearings

Mary Meehan

"Little pig, little pig, let me come in," the hungry wolf called out to his potential dinner in the straw house.

"Not by the hair of my chinny-chin-chin," the little pig bravely replied.

"Then I'll huff and I'll puff and I'll blow your house in," the wolf roared. And he blew the house down.⁽¹⁾

This scenario worked well for Democrats on the Senate Judiciary Committee in 1987, when they defeated the nomination of Judge Robert Bork to the U.S. Supreme Court. But they have not defeated any Supreme Court nominee since Bork. The rise of conservative media, including television and radio talk shows, has done much to keep the hungry wolf away. So have the Internet web sites, blogging, and e-mail campaigns of conservatives and pro-life activists. More helpful than anything else, though, has been the election of more pro-life members to the U.S. Senate. As many have said recently, elections do matter.

In the January, 2006, Senate confirmation hearings for now-Justice Samuel A. Alito, Jr., Judiciary Committee Democrats huffed and puffed as hard as they could. Alito, with enormous patience, sat and listened to them for three days, answering many of the same questions over and over again. Although the Democrats knew they didn't have the votes to stop him, some accepted poor advice from Massachusetts senators John Kerry and Edward Kennedy to filibuster against confirmation on the Senate Floor. The full Senate quickly stopped the talkathon by a walloping 72-25 vote, then confirmed Alito by 58-42.⁽²⁾ Much like the hungry wolf, the Democrats had let frustration do them in. Roaring to their latest target that "I'm coming down the chimney to eat you," they had fallen into the pot of boiling water in the fireplace.⁽³⁾

The Democrats are not happy campers after their defeat, but they will survive somehow. Undoubtedly they, NARAL Pro-Choice America, the Alliance for Justice, and People for the American Way are trying to learn from their defeat in order to be more effective when the next Supreme Court vacancy occurs. If President Bush is able to place one more conservative on the Court within the next year or two, that should tip the balance on abortion and other key issues. Observers say another Bush nomination will trigger the "mother of all battles" over the Court's future.

Clearly, this is no time for opponents of Roe v. Wade, the Court's 1973 decision that legalized abortion, to let down their guard. They are still at least one vote short of overturning Roe, unless they can persuade Justice Anthony Kennedy to change his mind. In fact, because of the growing weight of Roe as a precedent, they cannot be sure that either Justice Alito or Chief Justice John Roberts will vote to strike it down. So they, like their opponents, must review the Alito hearings in order to find lessons for the future. In a contribution toward that goal, I will review the Roe-related performances of Judiciary Committee senators, especially ones on the pro-life side. Then I will suggest a few ways to improve the confirmation process. Finally, I'll make a few suggestions about preparing a major case against Roe.

Rating the Senators and the Nominee

Senator Arlen Specter, the Pennsylvania Republican who currently chairs the Senate Judiciary Committee, is a feisty independent. A veteran Roe supporter, he had to promise--as a condition of his election as committee chairman--that he wouldn't use a "litmus test" against Bush nominees.⁽⁴⁾ He certainly has kept his word. While undergoing cancer treatment last year, he shepherded the nomination of John Roberts for Chief Justice through the Senate. In early 2006, he ran the Alito confirmation hearings with courtesy, fairness, an occasional flash of humor, and much-needed moral support for Judge Alito and his family. After a rough day of questioning, the chairman remarked, "The crowd has pretty well emptied out, but the Alitos are all still here."⁽⁵⁾ When the long interrogation was nearly over, he complimented Alito on his "remarkable patience."⁽⁶⁾ And it was Specter who initiated powerful testimony on Alito's behalf by fellow appeals-court judges.⁽⁷⁾

The down side, though, is that Specter also pressed Alito to pledge allegiance to a constitutional "right to privacy" and to a strict form of stare decisis, the legal doctrine of "to stand by things decided," with respect to Roe v. Wade. Alito agreed to a constitutional right to privacy, but did not say whether it includes a right to abortion. He also expressed reverence for stare decisis--too much, in this writer's view--but suggested there are times when a constitutional precedent should be overruled. He mentioned Plessy v. Ferguson, the 1896 decision upholding segregation, as such a case. He resisted Specter's concept of "super-precedents" and "super-duper precedents," saying that reminded him of the size of laundry detergent. He acknowledged, without either recanting or reaffirming, his 1985 statement that the Constitution doesn't protect a right to abortion.⁽⁸⁾ Specter's questioning, although on point, was less aggressive than the Democrats' interrogation. In a sense, perhaps, he inoculated Alito against the rougher treatment about to come.

Democratic Senator Charles Schumer of New York was relentless and repetitive in his questions about Roe. At least, though, he was direct in using the word "abortion."⁽⁹⁾ A visitor from Mars wouldn't have known what some of the others were talking about. Senator Kennedy spoke of "the choice issue."⁽¹⁰⁾ Senator Herbert Kohl of Wisconsin referred to allowing "women to keep private medical decisions private." Senator Dianne Feinstein of California referred to that old standby, "a woman's right to choose." As the Washington Post later reported, "Heading into the 2006 elections, the last thing they [Senate Democrats] wanted was to look like a party supporting abortion on demand."⁽¹¹⁾ So they flailed around, using first one issue and then another.

Senator Kennedy provided a rare moment of drama when he demanded a subpoena for records in a manuscript collection at the Library of Congress. The records deal with Concerned Alumni of Princeton, a group Alito had some connection with long ago. If Chairman Specter denied his request to go into executive session for a subpoena vote, Kennedy declared, then "we're going to have votes of this committee again and again and again..." Specter, highly annoyed, remarked that he was chairman and told Kennedy that "I'm not going to have you run this committee and decide when we're going to go into executive session." Adding that he would consider Kennedy's request "in due course," he banged his gavel and moved on to another senator. During the lunch break, Specter arranged for committee staff to look at the records over at the Library. (There was no need for a subpoena.) After reading files until the early hours of the next morning, the staff reported that Alito's name did not appear anywhere in them.⁽¹²⁾ This neatly punctured the hot-air balloon launched by the senior senator from Massachusetts.

An observer remarked that Kennedy seemed to have lost his fast ball. The same might be said of the Judiciary Democrats in general. Several, including Kennedy, spent an inordinate amount of time in trying to make a mountain out of a recusal issue that looked like a molehill. Their efforts to discredit Alito's integrity on that issue, and their suggestion that his link to the Princeton alumni group implied a discriminatory attitude toward women and minorities, seemed unfair to many, including Alito's wife. After South Carolina's Republican Senator Lindsey Graham went to Alito's defense, mocking the Democrats by asking him, "Are you really a closet bigot?" Martha-Ann Alito left the hearing room in tears.⁽¹³⁾

Senator Kennedy and Senator Richard Durbin of Illinois were overbearing, Senator Joseph Biden of Delaware too wordy (as usual), and Senators Feinstein and Kohl refreshingly courteous.⁽¹⁴⁾ In responding to Feinstein, Alito made an excellent statement of why a judge should be open to persuasion. It would be wrong, he said, to tell a litigant: "If you bring your case before my court, I'm not even going to listen to you; I've made up my mind on this issue; I'm not going to read your brief; I'm not going to listen to your argument; I'm not going to discuss the issue with my colleagues. Go away. I've made up my mind."⁽¹⁵⁾

Senator Mike DeWine, an Ohio Republican, made a strong and helpful statement against Specter's concept of "super-duper precedents." Noting major and longstanding precedents that eventually were overturned, DeWine contended that Roe's longevity does not mean "that it's entitled to special deference." He mentioned bipartisan criticism of Roe and said the decision is "not super-duper precedent or even super-precedent. It is precedent. Nothing more."⁽¹⁶⁾

Chairman Specter had used a chart showing 38 cases that built upon Roe v. Wade. Senator Sam Brownback, a Republican from Kansas, countered with a chart showing many precedents that built on Plessy v. Ferguson, the 1896 case that upheld racial segregation. Yet Plessy and its progeny didn't prevent the Supreme Court's finding, in the 1954 case of Brown v. Board of Education, that school segregation is unconstitutional. Brownback also described two precedents the Court has not overturned, but ones he believes to be "spectacularly wrong": Buck v. Bell, a 1927 case that upheld compulsory sterilization, and Korematsu v. United States, a 1944 case upholding the exclusion of Japanese Americans from the West Coast during World War II.⁽¹⁷⁾ Then, as Brownback read quotes critical of Roe v. Wade from noted supporters of legal abortion such as Laurence Tribe, Justice Ruth Bader Ginsburg, and the late John Hart Ely, an aide held up charts that showed the quotes to the audience in the hearing room--and the much larger television audience.⁽¹⁸⁾ This is precisely the kind of educational work so much needed in public forums.

Oklahoma Republican Senator Tom Coburn got Alito to acknowledge that stare decisis "is not expressly mentioned in the Constitution" and that the Founders didn't mandate its use. The Oklahoman went out of his way to note that Senator Durbin, an abortion supporter who had been giving Alito a hard time, used to be "adamantly pro-life." Coburn, an obstetrician, also introduced into the record information on abortion complications.⁽¹⁹⁾ He had a tendency, though, to deal with too many topics in a short time, sometimes introducing an intriguing one but then failing to explain it. At one point, he referred to his care of "over 300 women who've had complications" from abortion, but didn't describe any of the complications. Elsewhere he mentioned that he "had a grandmother who came into this world as a result of rape," but didn't elaborate on that story, either.⁽²⁰⁾ Perhaps he could have given people troubled by hard cases something positive to consider.

Senator Lindsey Graham spoke of the many Americans "who are heartsick that millions of the unborn children have been sent to a certain death because of what judges have done." And if abortion were to become a reason to filibuster a Supreme Court nominee, he warned, either side could use that weapon--and some pro-life senators "would stand on their feet forever."⁽²¹⁾

Samuel Alito proved to be impressive and enduring in his confirmation ordeal. When asked about the specifics of opinions he had written as an appeals court judge, he was able to give persuasive answers. While he sometimes gave them in mind-numbing detail, his interrogators by and large got what they deserved. Certainly he proved to have the remarkable calmness and patience of a "judicial temperament." He is a clear writer, is extremely conscientious about his work, and has the potential to be an outstanding justice. One only hopes that he won't worry too much about stare decisis, but will instead focus on something he said in the hearings: "When you know that you are the court of last resort, you have to make sure that you get it right."⁽²²⁾

Needs some work. A lot of work.

Modest Steps to
Improve the Confirmation Process

While not nearly as bitter as the confirmation battles over Robert Bork and Clarence Thomas, the one for Samuel Alito was still a major ordeal for the nominee and for his family and supporters. Too often, as Texas Republican Senator John Cornyn said, the process treats nominees "more like piñatas than human beings."⁽²³⁾ Yet some senators also managed to be very boring as they droned on, reading long statements and questions prepared by staff. Many asked the same questions other senators had asked. Often, and with good reason, observers used the term "windbag." The portion of hearings I watched on television one day was so dull that I was grateful for Senator Kennedy's little subpoena tantrum and Senator Charles Grassley's striking red vest. They helped me stay awake.

Public hearings for Supreme Court nominees are a twentieth-century innovation,⁽²⁴⁾ and some critics suggest we could do without them altogether. Senators would still have the nominees' records, and possibly answers to written questions, to evaluate. But those who believe this would lead to a less politicized process may be mistaken. Interest groups would still mount campaigns for and against nominees, and the latter might find it hard to defend themselves without the hearing process.

Two modest steps, though, might improve the procedure. First, nominees' pre-hearing visits with senators should be true courtesy calls, rather than opportunities for private interrogation by the senators. In briefing reporters, senators put their own spin on the answers to such interrogation. Their spin is not always fair, but nominees have no chance to clarify matters until the hearings. Nominees might themselves make this change by saying in advance that they won't answer substantive questions before the hearings.

Second, the time allotted to hearings should be cut roughly in half. Senators' opening statements--a prime opportunity for windbaggery--should be omitted, and each senator should have just one round of questions. This could eliminate many repetitive questions and provide a sharp, clear focus on key issues. Verbose senators would not appreciate the change; but it might save them from themselves.

The anti-Roe side of the Judiciary Committee would be bolstered if a pro-life Democrat, such as Senator Ben Nelson of Nebraska, were to join the committee. Having pro-life women there, whether Democrats or Republicans, would strengthen the anti-Roe forces even more. There are able pro-life women in the House of Representatives; those with good statewide prospects should consider running for the Senate and joining the Judiciary Committee. (While most committee members are lawyers, that's not a requirement for membership. Grassley, for example, is a farmer; Coburn is a physician; Kohl is a businessman.) Senator Feinstein, a strong Roe supporter, is the only woman on the committee at present. It would be enormously helpful if she were outnumbered by two or three articulate women on the pro-life side.

Most of the men on that side are doing better on Roe than in the past. But it would be good to hear about it from Senator Grassley, an Iowa Republican and reliable pro-life voter who has neglected Roe in recent confirmation hearings. As a senior senator with a healthy streak of independence, Grassley has both institutional clout and respect from the media.

Getting Ready for the Big One

The Supreme Court may now have enough votes to uphold the federal ban on partial-birth (or D & X) abortion, an issue it will hear next fall. Votes to uphold it could come from Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Samuel Alito. They might uphold the federal ban despite Stenberg v. Carhart, the 2000 decision that struck down a state ban on D & X abortion. The Court traditionally shows more deference to Congress than to state legislatures, and it could accept congressional fact-finding that D & X abortion is never needed to protect a woman's health. Or it could require some type of health exception without striking down the entire ban. Which way it goes, and what Chief Justice Roberts and Justice Alito do, could say much about chances for overturning Roe v. Wade further down the road.

While Justice Kennedy voted to uphold the state ban on D & X abortion in Stenberg v. Carhart, he also voted to uphold Roe in the 1992 Planned Parenthood of Southeastern Pennsylvania v. Casey decision. Pro-life attorneys hope the Chief Justice eventually will persuade Kennedy to vote against Roe. But if a reversal is to have more staying power than Roe itself, it would be immensely helpful to have a decisive majority for it--at least 6-3 and preferably 7-2 (the number Roe had). This underlines the crucial importance of the next one or two Supreme Court appointments.

There is no reason to twiddle thumbs while waiting for those appointments. A vast amount of educational work needs to be done--with the public, the media, and the legal community--on the key problems of Roe. The educational campaign should emphasize information about abortion that was not readily available in 1973. Recent scholarship, for example, shows that Roe's account of the common law on abortion is even more mistaken than early critics suggested.⁽²⁵⁾ (See "How the Supremes Flunked History" elsewhere on this site.) There should also be stress on attorney Rebecca Messall's study of the eugenics influence on Roe; studies of malpractice suits over abortions since Roe; and medical studies of abortion complications.⁽²⁶⁾

Sooner or later, another constitutional case on Roe v. Wade is likely to reach the Court. Attorneys handling the pro-life side should use the best of recent scholarship in their briefs. In his confirmation hearings, Justice Alito said there is "no such thing in general as bad knowledge, and I think that is relevant to the decision-making process that judges go through. They should be receptive to information that is relevant, that the parties want to bring to their attention..."⁽²⁷⁾ Attorneys should take him at his word.

The pro-life attorneys will have to be ready for two major challenges from the other side and from some justices during oral arguments. One will be an effort to save Roe by downplaying the privacy argument and emphasizing, instead, the equal-protection argument favored by Justice Ruth Bader Ginsburg and others. Here the pro-life attorneys can say the equal-protection argument treats the dispute as one between women and men alone--totally ignoring the interests of the third party, unborn children, whose lives are directly at stake.

The abortion side will say the Court should uphold Roe because of stare decisis considerations. In response, attorneys should emphasize the scholarship that says Roe is deeply wrong on constitutional grounds. They should add that it does great injustice to an entire class of human beings--similar to the injustice of Dred Scott, Plessy v. Ferguson, Buck v. Bell, and Korematsu v. United States. By placing Roe in that group, the attorneys will provide a context that should give pause to justices who are inclined to uphold Roe.

Beyond that, the Court itself has said that stare decisis has less weight in constitutional cases than in others. In a 1944 case, it declared that "when convinced of former error, this Court has never felt constrained to follow precedent," emphasizing constitutional precedent in particular. In 1996 the Court cited a liberal justice of the early twentieth century, Louis Brandeis, who had reminded his colleagues: "...in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions." Brandeis had listed many examples in a lengthy footnote.⁽²⁸⁾

Another liberal, Justice William O. Douglas, wrote in 1949 that a judge "remembers above all else that it is the Constitution which he swore to support and defend, not the gloss which his predecessors may have put on it."⁽²⁹⁾ That is certainly what judges should remember. They should also recall Justice Alito's above-noted comment: "When you know that you are the court of last resort, you have to make sure that you get it right."

Notes

1. Elizabeth Ross, The Three Little Pigs (Racine, Wis.: Western Publishing, 1973, [7-8].

2. Charles Babington, "Senate to Vote on Alito Today," Washington Post, 31 Jan. 2006, A-1 & A-4; and "Alito Is Sworn in on High Court," ibid., 1 Feb. 2006, A-1- & A-11.

3. Ross (n. 1), [22-23].

4. Sheryl Gay Stolberg, "G.O.P. Colleagues Backing Specter in Judiciary Post," New York Times, 19 Nov. 2004, A-1 & A-18; and Robert D. Novak, "Scaring Specter Straight," Washington Post, 22 Nov. 2004, A-19.

5. CQ Transcriptions, Transcript of "Senate Confirmation Hearings: Day 2" [on Samuel A. Alito, Jr.], 10 Jan. 2006, 148, www.nytimes.com. Other hearings (Jan. 9^th provided by FDCH e-media, and other days by CQ Transcriptions) are cited from www.washingtonpost.com. Page numbers are from print-preview format. The transcripts are cited below as "Alito hearings" with date, part number where needed, and page number.

6. Alito hearings, 11 Jan. 2006, part 3, 43.

7. Ibid., 12 Jan. 2006, part 2, 40.

8. Ibid., 10 Jan. 2006, 2-9 & 129-39; and Jo Becker and Charles Babington, "No Right to Abortion, Alito Argued in 1985," Washington Post, 15 Nov. 2005, A-1 & A-9.

9. Alito hearings, 10 Jan. 2006, 129-31; and 22 Jan. 2006, part 3, 11-15.

10. Ibid., 13 Jan. 2006, part 2, 3.

11. Ibid., 9 Jan. 2006, part 1, 32, 40 & 41; and Lois Romano and Juliet Eilperin, "Republicans Were Masters in the Race to Paint Alito," Washington Post, 2 Feb. 2006, A-1 & A-10.

12. Alito hearings, 11 Jan. 2006, part 2, 10-12 & 45-47 (and author's notes on televised hearing); and 12 Jan. 2006, part 1, 3.

13. Ibid., 11 Jan. 2006, part 3, 4-5; and Sheryl Gay Stolberg, "Thrust into Limelight and for Some a Symbol of Washington's Bite," New York Times, 13 Jan. 2006, A-15.

14. These comments are based on watching a long stretch of the Jan. 11^th hearing on television. I worked primarily from transcripts in writing this article. Also helpful were analyses by several attorney-bloggers on www.confirmthem.com.

15. Alito hearings, 11 Jan. 2006, part 2, 59.

16. Ibid., 10 Jan. 2006, 81-83.

17. Ibid., 11 Jan. 2006, part 1, 19-22.

18. Ibid., 22-23; and author's notes on televised hearing.

19. Ibid., 30-31, 33 & 34.

20. Ibid., 9 Jan. 2006, part 2, 15; and 11 Jan. 2006, part 3, 37.

21. Ibid., 9 Jan. 2006, part 1, 52.

22. Ibid., 10 Jan. 2006, 30.

23. John Cornyn, "Alito Nomination Moves to Full Senate," press release, 24 Jan. 2006, accessed at www.cornyn.senate.gov.

24. See John Anthony Maltese, The Selling of Supreme Court Nominees (Baltimore: Johns Hopkins, 1995) for an excellent history of the confirmation process. Also useful is Stephen L. Carter, The Confirmation Mess (New York: Basic Books/HarperCollins, 1994).

25. See Philip A. Rafferty, Roe v. Wade: The Birth of a Constitutional Right (Ann Arbor, Mich.: UMI [University Microfilms International], 1992); and Joseph W. Dellapenna, Dispelling the Myths of Abortion History (Durham, N.C.: Carolina Academic Press, 2006).

26. Rebecca Messall, "The Long Road of Eugenics: From Rockefeller to Roe v. Wade," Human Life Review 30, no. 4 (Fall 2004), 33-74; Kevin Sherlock, Victims of Choice (Akron, Ohio: Brennyman Books, 1996); John M. Thorp, Jr., and others, "Long-Term Physical and Psychological Health Consequences of Induced Abortion: Review of the Evidence," Obstetrical and Gynecological Survey 58, no. 1 (2002), 67-79.

27. Alito hearings, 11 Jan. 2006, part 3, 39.

28. Smith v. Allwright, 321 U.S. 649, 665-66 (1944); Seminole Tribe of Florida v. Florida, 517 U.S. 44, 63 (1996); and Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-07 & n. 1, 407-08 (1932) (Brandeis, J., dissenting).

29. William O. Douglas, "Stare Decisis," Columbia Law Review 49, no. 6 (June 1949), 735-55, 736. This was Douglas in his prime, long before he concurred in Roe v. Wade.