Judge Alito Answers Questions About Presidential Powers and Privacy
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RAY SUAREZ: We are now joined by two court watchers who have been following these hearings closely: Jeffrey Rosen, professor of law at George Washington University and legal affairs editor at the New Republic, and Stuart Taylor, a columnist with National Journal and a fellow at the Brookings Institution.
And Stuart, Judge Alito was in the hot seat for upwards of seven hours. They covered a great many subjects during this first day of questioning. Looking at the arc of the day, how did he do?
STUART TAYLOR: Given the rather arcane rules of this game– and it is sort of a game– I thought he had a pretty strong day after a little bit of a weak opening statement yesterday beginning with the joke that fell flat.
But today he managed to duck the questions he needed to duck. He gave very reassuring answers to the questions that people were worried about. You know: yes, I respect precedent. I would have an open mind about Roe v. Wade; I believe in the right to privacy; I believe in the right to contraception, Griswold v. Connecticut. The president is not above the law. I agree with Justice O’Connor when she said a state of war is not a blank check for the executive when it comes to the rights of the nation’s citizens. The one person/one vote principle is a fundamental part of American law.
So these are all areas where he previously said things that shook some people up, and he to some extent took the sting out of a lot of those. And with the help of Republican senators, he gave some counter examples to the claims that have been made that he very rarely rules in favor of a civil rights plaintiff or a race discrimination complaint.
This isn’t to say that he has no problems, but going in the idea was that he would be confirmed unless he stumbled. I didn’t see him stumble.
RAY SUAREZ: Professor Rosen.
JEFFREY ROSEN: I think I’m a little less impressed than Stewart was. I don’t think whether it was artful judiciousness or strategic evasiveness, but he managed on the central issues that are especially of concern to his skeptics not to give a much clearer sense at the end of this day than we had when we began it.
On the question of abortion he pointedly ducked the question of Sen. Schumer — Do you believe as an original matter that the Constitution protects a right to abortion — taking refuge in generalities about the importance of precedent.
And on a series of very pointed and interesting questions about executive power culminating in that discussion from Sen. Feingold that we heard, he refused to say whether or not the president’s domestic spying program violated the FISA statute or was authorized by the Constitution but just said he would have to engage in these questions when they came before him.
So if the standard is did he duck the questions that he had to duck, sure, and I guess that was strategic in his favor but for Democrats who are considering whether or not to oppose him strongly I didn’t see an awful lot today that would have reassured them.
RAY SUAREZ: Stuart.
STUART TAYLOR: I don’t question that he ducked a lot of questions. He did. You watch it and you think why doesn’t he answer the question? Sen. Schumer is asking him do you still believe the Constitution — and that’s why I refer to the rules of this peculiar game.
Jeff and I disagree, that I don’t think we learned anything in three days of testimony from John Roberts, anything at all about how he would rule on any of these pending issues.
And frankly, when we’ve got a hot national debate right now about whether the president has acted illegally, even criminally in this warrant-less surveillance program, no nominee for any judicial office is ever going to come close to answering it nor should they. It would be pre-judging the case.
RAY SUAREZ: Well, let’s take a look since you both mentioned abortion and the day ended with some tough questions from Sen. Schumer of New York. He said, for instance, that he does find a right to privacy in the Constitution, which takes him further than earlier some earlier nominees, notably Robert Bork who he said he admires.
He supported the conclusion in Griswold v. Connecticut, which is a landmark decision on contraception, and Eisenstadt, which extended the Griswold protections to single people, not just married couples. Should this reassure those people who had worried about his abortion stances earlier?
JEFFREY ROSEN: I don’t think so. It’s now clear that you can’t get confirmed to the Supreme Court unless you recognize the legitimacy of the Griswold and Eisenstadt cases. John Roberts did that and Judge Alito pointedly distanced himself from Robert Bork in this respect who had questioned those cases, but he declined to say whether or not he thought that Roe was a super precedent or a super duper precedent.
He made an okay joke about that sounding like some detergent that you’d see on the rack at the grocery store. But in that sense he seemed less reassuring about the scope of stability and continuity than John Roberts was.
And even Clarence Thomas, when you think back to his hearings, was almost expansive about the importance of precedent, saying nothing could be more important. He wouldn’t overturn it under any circumstances so on Roe, he really kept his options entirely open and refused to tip his hand in any way. I would not be reassured if I were a Democrat.
RAY SUAREZ: Stuart, options entirely open even after Sen. Specter, who is a pro-choice Republican, made such a point of noting the 38 decisions that upheld Roe since its first decision?
STUART TAYLOR: I agree with Jeff on that. I think he kept his options entirely open. And John Roberts, the chief justice now, kept his options entirely open. And any judge, anybody up for confirmation to the Supreme Court will keep his options open unless he can’t get enough votes to get confirmed that way.
There’s a pretty good argument that you shouldn’t be saying, yes, senator, I promise I’ll vote to reaffirm Roe v. Wade even though that’s going to outrage all the Republicans or, yes, senator, I promise that I will overrule it or I won’t overrule it.
So I think, no, the game at this stage is a ritual. Jeff is right. You have to pledge allegiance to the right to privacy, the right to contraception, Griswold v. Connecticut, to get confirmed. And probably if you say I think Roe v. Wade should be overruled, I’ll have an open mind if I get there, but as I sit here today, I think it should be overruled, you probably can’t get confirmed either.
RAY SUAREZ: Let me turn the question around a little bit. Yesterday during their opening presentations Senators Brownback of Kansas, Coburn of Oklahoma, Graham of South Carolina, all spent a lot of their time in their opening statements talking about abortion.
And today hearing the nominee uphold the right to privacy, uphold Griswold, uphold Eisenstadt, and speak in favor of stare decisis, respecting precedent, might they have something to worry about?
STUART TAYLOR: I think everybody who is worried about, you know, how Roe v. Wade is going to turn out has something to worry about because we have two new members of the court who quite properly in my view have avoided — well, Alito is not on there yet but if he gets there, have avoided saying yes I promise to overrule it; no, I promise not to overrule it. I don’t think they should say that.
I frankly don’t think they will overrule it. But that’s not because of any particular thing either of them have said. That’s because of my possibly incorrect gauging of their temperaments.
Neither one of these guys, it strikes me, is a bomb thrower, is somebody who wants to suddenly throw a lot of turmoil into the system and overruling Roe v. Wade would certainly do that.
RAY SUAREZ: Professor Rosen, today we heard about some arcane terms like presidential signing statements which really don’t make the news very often. But it’s a document generated when a president signs a bill that’s passed by Congress. What is it and why is it important?
JEFFREY ROSEN: This was part of a really fascinating debate about the scope of presidential power. And we know when President Bush signed the recent congressional ban on torture, he included a signing statement saying that it might not bind the executive branch in important ways.
Judge Alito, when he was an advocate, had supported the use of presidential signing statements to preserve presidential authority. And there was a long debate about his support for an important theory called the unitary executive that as Sen. Kennedy said Judge Alito had supported quite recently. This is the centerpiece of the recent debate about the scope of presidential power, and the most dramatic advocates of this theory argue that the president should have the power even to refuse to obey laws that he believes are unconstitutional like the law restricting wiretaps.
Judge Alito was asked: Do you support the use of signing statements under these circumstances? He said that’s a theoretical question that the court hasn’t decided. I’ll have to come back to that.
Do you support the unitary executive theory in its broadest form? He drew an interesting distinction between the president’s control over his appointees and his ability to fire people and the scope of his authority. And he said, no, here I’m just talking about the ability to fire cabinet appointees. I’m not saying that the president should be able to break laws with which he disagrees.
So by bobbing and weaving on that central question, he really didn’t tell us, although he was asked to repeatedly whether he thought that that FISA law, for example, could be broken in light of Congress’ authorization of the use of force after 9/11.
He refused to say whether that put the president in the zone of twilight when he was acting against expressed congressional intentions. He just said I have to consider all those arguments when they came before me. And in this sense although lots of senators really tried to give him a run for his money here we didn’t have a strong sense at the end of the day exactly where he sat on these questions.
RAY SUAREZ: Stuart, did Judge Alito de-claw those questions about the limits of executive power?
STUART TAYLOR: I don’t think he de — well, I think he got by which is all he needed to do. Now, I get the impression from Jeff that he thinks Judge Alito ought to be saying, well, here’s how I would rule on this case. Oh, the president against Congress on wiretapping? No, I’d rule against the president on that. And on Roe v. Wade, oh, I’d overrule that one. Is that really what you want him to do?
JEFFREY ROSEN: Of course not. No, no. There’s no question that he shouldn’t tell how he’s going to rule on cases coming before the court in the future. But when you’re asked very specific questions both about his views about constitutional questions like Roe independently of the stare decisis question — or even there was a nice exchange where he was asked tell us about Bush v. Gore. The election of 2000 at this point is settled. It’s not going to come up again. Was that right as an original matter? He said election disputes might come before me.
Now do I admire him for bobbing and weaving? I do. And I’m especially impressed that he didn’t resort to the mantra that lots of past nominees have used: I can’t answer that; that will come before me. Judge Ginsburg did that. Chief Justice Roberts did that. There’s a certain elegance about the fact that he appeared to be forthcoming without actually being forthcoming.
I’m just saying for my own sake as someone who hasn’t made up his mind on the nomination, I don’t feel like I know a whole lot more about his substantive views about abortion or executive power than I did before the hearing began.
RAY SUAREZ: Stuart, what about some of the issues talked about the anti-Alito activists in the run-up to these hearings, things like his recusal over the Vanguard Mutual Fund ownership when the case came before him, the findings for corporate respondents in hiring bias cases and his membership in this Princeton alumni group?
STUART TAYLOR: Well, those all got some attention today. On the Vanguard thing, his strength is that I don’t think there are many serious legal ethicists who think seriously that there was a problem, that he had a conflict of interest sitting on vanguard cases because he owned some Vanguard Mutual Fund shares but he said he would recuse himself, for how long was kind of ambiguous, and the explanation of why he failed to recuse himself in one case and then changed and then it had to be brought to his attention.
The explanations have been unsatisfying so I think he’s made his own problem to some extent there and added fuel to the fire but the American Bar Association Committee, which is no bevy of administration supporters, it’s a pretty broad group, gave him a very strong thumbs up on integrity after examining the Vanguard matter very closely.
Concerned Alumni for Princeton, this is a group that he proudly said I’m a member when — a conservative group — when he was applying in 1985 for a political appointment in the Meese Justice Department and now he says I have no recollection of that apart from that document. That probably is the hardest thing to believe of all the things that he said.
And the Democrats are making hay out of it because Concerned Alumni for Princeton or some of its members said some pretty far-out things about — we’ve got too many women here; we’ve got too many black people here — that frankly I think it’s hard to believe that Alito agreed with those statements but being associated with an organization where people were making them gets him into problematic territory. I don’t think it’s going to be a huge problem for him but it’s kind of a blot.
RAY SUAREZ: Gentlemen, thanks a lot.