Honest Nominees and Artless Dodgers

"Judge Alito, in 1985, you wrote that the Constitution—these are your words—'does not protect a right to an abortion.' You said [today] that those words accurately reflected your view at the time. Now let me ask you: Do they accurately reflect your view today? ... Why can't you answer the question?" —Sen. Charles Schumer, D-N.Y.

"Because ... the issue of abortion has to do with the interpretation of certain provisions of the Constitution." —Judge Samuel Alito

Again and again, Schumer and others pressed the question. Again and again, Alito ducked and dodged. The questions seemed fair. The answers seemed lame, evasive, even infuriating, to those of us who want straight answers. So how can I persist in my admiration of Alito? And how can I continue to credit the virtually unanimous views of people well acquainted with him that this is a man of extraordinary honesty and integrity?

The answer is that the confirmation process has been degraded to the point that I don't think Alito or any other nominee of integrity—conservative, liberal, or moderate—could be confirmed if he or she gave direct and candid answers to every question about every issue.

Far-fetched? Let me explain.

Let's start with the conservative Alito. Had he given Schumer a direct and candid answer, it would (I'd guess) have gone something like this:

Yes, I still believe that the Constitution does not protect a right to an abortion. And this is not an "outside the mainstream" view. It was the view of the vast majority of serious constitutional scholars when Roe was decided in 1973, including pro-choice liberals such as Archibald Cox and John Hart Ely.

They said, and I agree, that this divisive issue should have been left to the democratic process in the states—most of which would have legalized abortion long before now, both for their residents and for visitors from anti-abortion states. This remains the view of many pro-choice liberals today. And seven of the current justices, including Sandra Day O'Connor and Ruth Bader Ginsburg, have indicated disagreement with Roe.

But I also recognize that this is a precedent that the justices have repeatedly and forcefully reaffirmed over 33 years. And although most Americans favor some restrictions on abortion that Roe forbade, the vast majority don't want Roe itself overruled.

It would be improper for me to prejudge any case. But I can tell you that I have no desire to destabilize the law and throw the country into turmoil. And I fear that overruling Roe would do both.

This is probably pretty close to the (private, if not public) view of most constitutional experts today. But in the strange cauldron that confirmation politics has become, it would probably doom Alito's nomination.

Democrats would vote against him en masse. Roe is holy writ for them. And they would never trust Alito to uphold Roe as precedent after having blasphemed it as a constitutional concoction. Some of the Senate's handful of Republicans who support abortion rights might also vote against him. And he would lose many anti-abortion Republicans. They would (correctly) see such strong reluctance to destabilize the law as signaling an inclination to reaffirm Roe.

So where would Alito get 50 votes? Especially if he also disclosed his views on the other big issues?

Could Alito get over the top by signaling that he would overrule Roe? No way. Even in a 55-Republican Senate, no nominee who said that could be confirmed.

Indeed, such a nominee might not get 40 votes—not after he or she had offended gun lovers by saying there is no individual right to keep and bear arms (or had offended gun controllers by saying there is). And had offended free-speech advocates by saying there is no right to burn an American flag (or had offended many more people by saying there is). And had offended all Democratic senators and some Republicans by pronouncing racial preferences unconstitutional (or had offended many other Republicans by endorsing preferences). And so on, through presidential war powers, warrantless wiretaps, gay rights, states' rights, religion, redistricting, Internet porn, right to die, campaign finance, death penalty, reporters' privilege, tort reform, and more.

Would the going be easier for a Democratic president's nominee—say, a liberal who proudly embraced Roe's sweeping abortion right? After all, Ruth Bader Ginsburg came close to doing that in 1993, notwithstanding her strong earlier criticisms of Roe. And she won confirmation by a 96-3 vote.

That was then. Now, given the Senate's bitter polarization, most Republicans would oppose any nominee who vowed fealty to Roe. So might a few Democrats. Especially after the nominee had given direct and candid answers to questions like these:

Do you agree with the rule of Roe and Doe v. Bolton that the abortion right includes the right to abort a viable, third-trimester fetus if a doctor says that killing it would be best for the woman's emotional health? Do you agree that the Constitution protects unlimited numbers of abortions for sex-selection purposes? And that it gives a woman a right to abort a fetus without even telling the father?

Also questions like these: Do you agree that the Constitution bans recital of "under God" as part of the Pledge of Allegiance? And that it bans any suggestion that there is a God at any public school graduation or other event? And that it bans states from requiring the death penalty for murdering police officers? And that it allows governments to make it a crime to have a gun in your home for hunting or self-defense? And that it requires states to sanction gay marriage? And that the Boy Scouts should be forced to have gay scoutmasters? And that courts should consult foreign law to help determine our own Constitution's meaning? And that our laws favor use of large racial preferences to allocate more state jobs and university slots to black and Hispanic people ahead of otherwise better-qualified Asians and whites? And that the Voting Rights Act requires creation of strangely shaped election districts to create safe seats for black and Hispanic politicians?

For most liberal Democratic lawyers and judges, direct and candid answers to all (or almost all) of these questions would begin with "yes." Could a nominee professing such an array of liberal views be confirmed? Fat chance. She might not get 30 votes.

How would a moderate nominee fare? Say, another Sandra Day O'Connor? Well, my January 7 column listed more than 30 O'Connor votes and opinions that mightily offended liberals. (That was without getting to her role in the famous 5-4 vote that made George W. Bush president.) My July 2, 2005, column listed some 12 O'Connor votes that mightily offended conservatives. Both lists could have been much longer.

At the time of her 99-0 confirmation in 1981, O'Connor would not predict how she would vote on anything. (If she had, a lot of her predictions would have been wrong.) And lots of people have lots of reasons to speak glowingly of her now. But any nominee who openly agrees with all of O'Connor's votes and opinions would be defeated.

I call this the full-disclosure-is-suicide principle. Among the reasons for it is the fact that a great many senators and voters would oppose any nominee who had publicly rejected their views on even a single issue about which they care passionately. The cumulative effect would be formation of a powerful coalition to bring down any nominee with a probing and independent mind who disclosed his or her views on every issue.

If we keep this up, the best people will spurn nomination because the long-shot hope of winning the prize won't be worth the self-abasement and humiliation necessary to seek it. The only confirmable nominees (if any) will be people willing to make corrupt campaign promises to their own coalitions of interest groups to help them slime through.

That's why I'm inclined to forgive Sam Alito's ducking and dodging. And that's why I'm willing to take a chance on a nominee whose opinions and votes reflect a legal-political philosophy that may be markedly more conservative than mine, though hardly "extreme."

By all credible accounts, Alito is a decent, fair, honest, highly intelligent, widely admired, devoted public servant with no racism or sexism in him. He seems a good bet to do the right thing when the chips are down. Considering the alternatives, that's good enough for me.