Yesterday I wrote in an op ed (Bangor Daily News) arguing that Alito wasn’t Supreme Court timber because, politics aside, he waffled on whether he would recuse himself from cases involving mutual fund companies he owned. First he said-to the US Senate in 1990-that he would do so, identifying Smith Barney and Vanguard by name in writing. And then he didn’t, in one case recusing himself only after a plaintiff in the case exposed his holdings in Vanguard to be between $390,000 and $1 million, more than half his assets at the time.
Now we hear that he is backing away from his 1985 statement “that the Constitution does not protect a right to an abortion.” It’s hard to keep up-I thought “spineless” was a term reserved for Democrats. Senator Diane Feinstein, the only woman on the judiciary committee, reports that “He said, ‘I was an advocate seeking a job, it was a political job and that was 1985. I’m now a judge, I’ve been on the circuit court for 15 years and it’s very different. I’m not an advocate, I don’t give heed to my personal views, what I do is interpret the law.”‘
Incredibly, Feinstein chirps, “The question is, Did I believe he was being absolutely truthful, and I did.”
The real question is, why is it that Feinstein can’t tell the difference between the personal and the political? It’s one thing to hold personal views against abortion, as in “I wouldn’t have one” and even, “I don’t think others should have them.” It’s another to express a judgment about what the laws of the land are, which is clearly what his statement is: “the Constitution does not protect a right to an abortion.” That’s a judgment about what the Constitution does or does not provide, not a personal view on whether people should be able to make a given choice. For example, one could hold the opposite view, “I believe people should be able to have abortions,” yet still argue that the Constitution doesn’t guarantee that right. The first is an expression of what you think is right personally; the second is an interpretation of what the law says.
When Alito told Feinstein, “I don’t give heed to my personal views, what I do is interpret the law,” she never picked up on the fact that this was what he was doing in 1985: interpreting the law. He has never said his interpretation has changed, nor is there any evidence that it has. Thus it is clear what his appointment means for Roe.
Feinstein’s lapse in not realizing he was interpreting the law back in 1985 could be convenient for her. She could vote for him, claiming his opposition to Roe wasn’t a foregone conclusion, which it all but certainly is. Then she can later claim, if the landmark decision falls, that she had no way of knowing.
It would be easier to admire Alito if he would just stick to his guns, show a little consistency by recusing himself when he said he would and then being candid: he didn’t think Roe was right in 1985 and hasn’t changed his mind. But he’s a worm, bending what he says to the situation he finds himself in. On the recusal issue he reportedly blamed a computer glitch for assigning him the case, but then said he wasn’t required to recuse anyway. On abortion, he’s stated his interpretation clearly and now just claims it was a personal view.
You don’t have to be a lawyer, much less a judge, to see the guy lacks the strength of character for a position on the nation’s highest court-regardless of whether you agree with him politically. But, apparently, you have to be more than a Senator.
GREG BATES is the founding publisher at Common Courage Press and author of Ralph’s Revolt: The Case For Joining Nader’s Rebellion. He can be reached at firstname.lastname@example.org.