Up until 12:30 p.m. Wednesday, I watched much, though not all, of the Alito hearings, especially because I was to (and did) appear on a program discussing them on Tuesday evening. One has many impressions of both the Senators and Alito, in both cases some impressions being very favorable, some being very unfavorable, and some in the middle. To discuss all of them would take extensive time and space. One lacks the time, at least currently.
But there is one point that should be made immediately, in the (no doubt forlorn) hope that it could conceivably have some impact, especially because there are elements of the news media too that have recognized it. The point is that, for the most part — not entirely, not always, but most of the time — Alito will not answer fundamental questions. He tells you what principles are involved in a matter and what questions would (he says) have to be asked, and he keeps saying he would have to see the facts and the arguments, blah, blah, blah. But he will not answer the fundamental questions, he refuses to answer them, even though those questions are of vital current and future importance and even though he often does give the impression of seeking to flee from his past views without actually coming out and saying he now rejects them.
Most crucially, he will not say whether he will vote to overrule Roe, or whether the President’s constitutional power as commander-in-chief allows him to engage in domestic eavesdropping. These fundamental issues and others are, in consequence, utterly up for grabs in regard to Samuel Alito, notwithstanding that, as said, he seeks to give the impression that he is fleeing from prior views. People who care about these and other issues from the liberal side should vote against Alito because, based on his past comments, there certainly is a possibility, isn’t there, that he will vote to overturn Roe and in favor of unchecked presidential power?
Alito seeks to give the impression that he will support abortion rights and that the rule of law constrains the President, but he won’t say it, and he won’t say it even though his statement could not be legally binding on him if, in a later case, somebody comes up with persuasive points to the contrary. If he won’t say it, as he in fact won’t, then he is more likely not to support abortion and not to check the President in later cases.
Of course, Alito and the Republicans and others claim that he cannot speak on issues that could come before him. That is the current conventional wisdom, stemming, I gather, from the Scalia (I think) and Ginsberg hearings. Like most conventional wisdom, it is hogwash. Appended below is the portion of a prior blog which discusses why this position is hogwashian.
If Democratic Senators and one or two Republican Senators whom I can think of are truly serious about crucial matters like abortion and overbroad presidential power, they should vote against Alito in committee and should filibuster his nomination on the floor if he continues, as he has until now, to refuse to answer deeply fundamental questions and instead continues his windbagging filibuster against answering them.
What’s more, if there are media in this country, including important ones, that have a sincere view about these matters from what I call the liberal standpoint, they should write and speak about this.*
LAWRENCE R. VELVEL is the Dean of Massachusetts School of Law. He can be reached at firstname.lastname@example.org.
*This essay represents the personal views of LAWRENCE R. VELVEL.