Alito's Reasons Why Not

I said last night that I wasn't interested in blogging about Alito, but looky here--it's an Alito post. The Judiciary Committee today heard from other witnesses about the judge, and finally, in Laurence Tribe's opening statement, I heard the first real argument during the hearings about why Alito should not be confirmed:

It is quite clear that there are two, central concerns in the country and in the Senate with respect to this nomination, and they do not relate, honestly, to what a truly admirable, collegial, modest, thoughtful and brilliant fellow Sam Alito is. . . .

They relate to whether Justice Alito might, by casting a decisive fifth vote on many cases, narrow the scope of personal liberty, especially for women, and broaden the scope of presidential power at a time when we see dramatically the dangers of an unfettered executive by weakening the ability of both Congress and the courts to restrict presidential assertions of authority.

. . .
It is the liberty interest, which occurs not only in Roe, but in the right to die and in many cases that we can't predict over the next century, and certainly over the 30 years that Justice Alito would serve. It is that underlying liberty which is at stake.

And it is crucial to know that Judge Alito dramatically misstated the current state of the law. And I say that with deference and respect, but it was clear.

. . .
Never, in the descriptions that you heard from Judge Alito with respect to the issues in Roe, did he confront the question, does he, too, believe that that liberty is special? Or does he, as did Robert Bork and as do many, believe that there is no special liberty simply because the woman happens to have a fetus inside, her interest is no greater than my interest in learning how to play tennis.

So, it seems to me clear that the indications we have of Judge Alito's belief are that he does not have a conviction that that liberty is special. And he is unwilling not only to commit to treating this as a so-called "super precedent," he's not even willing to indicate to this committee that he believes that the court has a special role in protecting intimate personal liberties.

The Washington Post provides a transcript (scroll almost all the way to the bottom).

Tribe is one of the country's leading experts in Constitutional law (do your own damn Google search). I don't think he did himself any favors in insisting that he wasn't taking sides for or against Alito but was instead just offering information (so, in his words, "that senators not cast their votes with, to borrow an image from a Kubrick movie, their eyes wide shut"), and even he admitted that his personal opinion wasn't hidden: "I'm not testifying for or against Judge Alito. I'm explaining why I am very troubled by his views. Obviously, it follows from that that I would be hard pressed to recommend his confirmation."

To get further insight into how Tribe is troubled by Alito's views, check out this opinion piece he wrote for The Boston Globe last year.