From Alito, a dodge on the details

by Tim Grieve

Sam Alito had a moment of eloquence in today's Senate Judiciary Committee hearing. In response to a question in which Iowa Sen. Chuck Grassley dismissed the notion that courts should take the lead in helping to create "a more just society," Alito pushed back gently: "Well, I think that if the courts do the job that they're supposed to do, they will -- we will -- produce a more just society," Alito said. "I think if you take the position as a federal judge, you have to have faith that if you do your job then you will be helping to create a more just society. The Constitution and the constitutional system that we have is designed to produce a just society."

Alito then segued into a metaphor that's a little more apt than the baseball stories folks keep trying to inject into Supreme Court confirmation hearings. Arguing that judges have a limited role to play in our government, Alito said that the Constitution "gives different responsibilities to different people. You could think of a football team or you could think of an orchestra where everybody has a different part to play, and the whole system won't work if people start playing ... the role of someone else."

It all sounded so reasonable. But as always, the devil is in the details, and Alito has been careful today to steer clear of them. John G. Roberts repeatedly declined to answer questions put to him by senators on the Judiciary Committee. Alito hasn't done that, exactly. He's responding to virtually all the questions senators are putting to him. He's just not really answering all that many of them.

Consider this exchange between Alito and Judiciary Committee chairman Arlen Specter. Specter asked Alito this morning if he accepted "the legal principles articulated in Griswold v. Connecticut, that the liberty clause in the Constitution carries with it the right to privacy." Alito responded by saying, "I do believe that the Constitution protects a right to privacy," then cited the ways in which the Fourth Amendment of the Constitution protects people from unreasonable searches and seizures -- an issue not particularly germane to Specter's question or Griswold's holding that married people have a right to buy contraceptives.
Specter pressed on: "Well, Griswold dealt with the right to privacy on contraception for married women. You agree with that." Alito responded: "I agree that Griswold is now, I think, understood by the Supreme Court as based on liberty clauses of the due process clause of the Fifth Amendment and 14th Amendment." Specter tried it another way, asking Alito if he agreed with Eisenstadt v. Baird, the 1972 case that extended the holding in Griswold to single people. Alito said he agreed with "the result" in Eisenstadt.

Three questions, three responses, and still no answer to the query underlying them all: Does Alito believe in "the legal principles articulated in Griswold v. Connecticut, that the liberty clause in the Constitution carries with it the right to privacy"?

A few minutes ago, Alito had an equally unilluminating exchange with Wisconsin Sen. Herb Kohl. Kohl asked Alito to opine on Bush v. Gore -- and, in particular, to say how the Supreme Court's decision in that case comported with Alito's views about "judicial restraint, not legislating from the bench and respecting the rights of states." For once, Alito declined to answer, saying he really didn't know what he thought about the case that handed the White House to George W. Bush. "I haven't studied it in the way I would study a case that comes before me as a judge," the nominee said.

Right at that moment, it was hard not to remember Clarence Thomas, who insisted during his confirmation hearing that he'd never discussed the merits of Roe v. Wade before and hadn't formed an opinion on it. We don't know if Kohl was thinking about Thomas as he pressed Alito to answer his question today, but he sure wasn't buying whatever it was that Alito was selling. "Bush v. Gore was "a huge case," Kohl said, "and I'd like to hope and like to bet that you thought about it an awful lot." Alito didn't disagree, but he didn't answer the question, either.