Don't Run From the Truth, Why Alito Shouldn't Deny His Real Convictions

washingtonpost ^ | December 18, 2005 | Bruce Fein

[ncountylee]

Misreading Robert H. Bork's 1987 shipwreck, the White House is bizarrely instructing its Supreme Court nominees to disown their prior attacks on wayward constitutional thinking from the high court. During his confirmation hearing for the post of chief justice, John Roberts dismissed tomes of the brilliant, caustic critiques of past constitutional capers that he authored under President Ronald Reagan, calling them merely an attorney's advice to a client.

According to his testimony, his intellectual sneers at the creative constitutional theories that summoned into being a generalized right to privacy ( Roe v. Wade in 1973) and exiled all religious acknowledgements from public life ( Wallace v. Jaffree , which banned the moment of silence in public schools in 1985) did not represent his views as an independent thinker. Roberts had joined the Reagan administration not as a Reaganite eager to alter the course of constitutional thought, he suggested, but as an opportunist who would have been equally inclined to serve under President Jimmy Carter.

[Balding_Eagle]

Fool me once..................................

[Terpfen]

Translation:

"Alito should come out and say he's a conservative so we can bash him for that just prior to and during his confirmation hearing."

[msnimje]

What are you talking about?

[Balding_Eagle]

Bork was foolish when he opened up during his hearings, and his words were used to "Bork" him. He can sort of be excused because that kind of openess was more the standard until then.

Never the less, I call that "Fool Me Once, shame on you".

Now the Post is trying to get Alito to open up also.

That would be "Fool me twice, shame on me".

Alito isn't that stupid. In fact one of his big challanges is not to make the Senators look stupid as he answers their questions. Republican and Democrat alike can barely stand in his intellectual shadow.

[msnimje]

Thank you for explaining and I agree.

I would like a "discussion" about these things as much the next Republican but I want Alito on the Court MORE!

[inquest]

I agree that it isn't appropriate for a nominee to say how he's going to rule. But I really hope he doesn't pull any "I didn't really mean what I wrote on that job application"-type of evasion. It'd be simple enough for him to acknowledge that he was sincere about what he wrote at the time, but that he wasn't issuing a judicial opinion when he wrote it.

But the fact that Alito can't say how he's going to rule doesn't mean the rest of us can't figure it out. We shouldn't be shy about acknowledging that he'd most likely vote against Roe, and about challenging liberals to explain exactly why they think it's a good ruling, when even many pro-abortion legal commentators have questioned its constitutionality.

[AncientAirs]

"The tenderness with which Roberts and Alito have treated Roe, by recanting or softening their past critiques, is especially baffling. Scholars of all philosophical persuasions -- for example, Yale's moderate-conservative Alexander Bickel, Harvard's liberal John Ely and Archibald Cox, and the University of Chicago's conservative Richard Epstein -- have decried the decision's feeble reasoning. In 1973, Justice Harry Blackmun extracted a constitutional right to an abortion from penumbras and emanations of the Bill of Rights, the views of the American Medical Association, the American Public Health Association and the American Bar Association, and the tautology of the Ninth Amendment: that rights not surrendered are preserved. Even Justice Ruth Bader Ginsburg, a star graduate of the American Civil Liberties Union, has voiced doubts about Roe's reasoning."