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Analysis of Day Two of Alito Hearings: Part I

MICHELE NORRIS, host:

Joining us now to discuss day two of Samuel Alito's confirmation hearings is Douglas Kmiec. He's chair and professor of constitutional law at Pepperdine University in Malibu, California. He's on the line with us now from Malibu. We're also joined by Jeffrey Rosen. He's a professor at George Washington University Law School and also legal affairs editor at The New Republic.

Good to talk with both of you again.

Professor DOUGLAS KMIEC (Pepperdine University): Good to be with you.

Professor JEFFREY ROSEN (George Washington University Law School): Thank you.

NORRIS: As expected, Samuel Alito faced a tough round of questioning on abortion, much of it focused on the principle of stare decisis; that is, to stand by that which is decided. I'm going to begin with you, Douglas Kmiec. As senators were trying to mine for clues about his legal views on abortion, what did they hear and what did they learn?

Prof. KMIEC: Well, they learned that as he said he has an open mind on the question, and notwithstanding the fact that he has raised personal objections to abortion as a legal right in his job application, that as cases have come before him as an appellate judge, he has fairly applied the precedent and that believes that this precedent has been relied upon. And while that doesn't give him a predetermined outcome on the question, he will be quite respectful of those precedents. And I think what we're getting here is that his method is likely to be one that is not far different from Justice O'Connor, namely weighing the individual interests against the state's desire to regulate on behalf of life and coming down differently in those questions as the facts are presented of particular regulations. In response to Senator Feinstein, for example, he seemed to affirm the well-embedded principle that there is a health exception that states must include in their regulations and that, I think, was a significant statement on his part.

NORRIS: Jeffrey, I'd like to bring you into this. Judge Alito said today, as we just heard, that he would view that issue of abortion with an open mind. He defended his dissent in the Casey vs. Planned Parenthood case. On this and other issues, were there exchanges that you heard today where a Democrat in particular who might oppose this nomination may have heard a satisfactory answer?

Prof. ROSEN: You know, I really don't think so. I suppose the most reassuring thing for Democrats was that Judge Alito unequivocally accepted the legitimacy of the Griswold decision, recognizing a right to use contraception, but his statements about the weight of precedent were pretty well boilerplate. I'm not saying that they were disingenuous, but he went out of his way to reject the idea that Roe might be a super duper precedent. He said that reminded him of the size of a laundry detergent in the supermarket, which was one of his better lines of the day. But he really went less far, for example, than Chief Justice Roberts, who talked about the central importance of stability and predictability, and even of Clarence Thomas, who in his confirmation hearings said that precedent is the most important thing; stability really has to be recognized above all. So while I'm not suggesting that Judge Alito was in any way disingenuous, I really think he was remarkably artful in saying a lot without actually tipping his hand in any way about abortion.

NORRIS: And, Professor Kmiec, your views on Judge Alito as he was wading through this mine field as senators were trying to figure out if he was--his dissents were following the rule of law or if they were based more on his personal beliefs.

Prof. KMIEC: Well, I think `artful' is a good word that Jeffrey has chosen. Yesterday, we heard from the senators that they were going to throw some tough punches. Well, I don't think they've landed very many. On the area of abortion, I think he's made it clear that he respects precedent and he has an open mind. On the area of executive power, he's reaffirmed the proposition that the president is not above the law and that he's stated a number of the considerations that he would employ, including reference to the Fourth Amendment and the famous Youngstown case that balances the president's power against Congress. But he does--he's been very careful not to prejudge cases, not to give particular outcomes, but largely to stay to the point of describing the law.

NORRIS: Professor, I'm going to have to ask you to hold on just a minute. We'll have more analysis of today's testimony coming up when we continue. Transcript provided by NPR, Copyright NPR.