#1: Alito's opinion in Farmer case is evidence that he would vote to uphold Roe
Broadcast and print media have repeatedly mischaracterized Alito's concurring opinion in the 2000 case Planned Parenthood of Central New Jersey v. Farmer as evidence that he has issued conflicting rulings on abortion. Specifically, these news outlets have juxtaposed Alito's decision in the Farmer case, in which he voted with the majority on the 3rd U.S. Circuit Court of Appeals to strike down a New Jersey law restricting certain late-term abortion procedures, with Alito's dissent in a 1991 case, Planned Parenthood of Southeastern Pennsylvania v. Casey, in which he argued for upholding restrictions on abortion. But Alito's actions in the two cases are in no way inconsistent. His concurring opinion in Farmer provides no support for the claim that he would have ruled the same way if he were sitting on the Supreme Court. Indeed, he explicitly noted in a separate concurring opinion that he was voting to strike down the abortion ban only because he was obligated as an appellate judge to follow Supreme Court precedent.
In that concurrence, Alito wrote that he was voting to strike down the abortion ban only because he was bound to follow the Supreme Court's 2000 decision in Stenberg v. Carhart. In that case, the court struck down a Nebraska law restricting certain late-term abortion procedures as an undue burden, in part because the ban did not include an exception for the health of the pregnant woman. While the majority opinion in Farmer provided a detailed examination of the New Jersey law's constitutionality, Alito explicitly distanced himself from such analysis. In his concurring opinion, he wrote: "Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent." He went on to express the view that the court's only responsibility was to "explain why Carhart requires us to affirm the decision of the District Court." (The District Court overturned the New Jersey late-term abortion ban.)
As correspondent Jeffrey Toobin stated on the October 31 edition of CNN's American Morning, the Farmer opinion represented "a reluctant following of precedent" by Alito. Toobin also correctly noted that Alito would have "a lot more flexibility regarding precedent" as a Supreme Court justice.
#2: Alito's recusal pledge covered only a limited time frame
In reporting on Alito's refusal to recuse himself in two cases involving companies in which he owned stock, The New York Times has repeated without challenge Alito's claim that the pledge he made in 1990 to recuse himself in such cases was limited to "the initial period" after his confirmation. In fact, when Alito assured the Senate Judiciary Committee that he would recuse himself from cases involving companies in which he had a financial interest, he did not qualify the pledge in any way or suggest that it was time-limited.
In the questionnaire he submitted to the Senate during his 1990 confirmation, Alito made the unqualified promise to recuse himself from all cases involving companies tied to his "financial interests," such as Vanguard Group and Smith Barney:
I do not believe that conflicts of interest relating to my financial interests are likely to arise. I would, however, disqualify myself from any cases involving the Vanguard companies, the brokerage firm of Smith Barney, or the First Federal Savings & Loan of Rochester, New York.
Despite this pledge, Alito participated in a 2002 case involving the Vanguard Group in which Shantee Maharaj, widow of a holder of Vanguard funds, charged, according to a November 1, 2005, Washington Post article, "that the company had improperly seized some private accounts and blocked the owner's widow from obtaining the funds they contained." Alito joined in a ruling in favor of Vanguard, but the decision was withdrawn after Maharaj complained that Alito's participation in the case was improper. Further, Alito ruled on a 1996 case involving Smith Barney.
The Times has also presented as undisputed the claim that Alito was not required to recuse himself in those cases. In fact, the propriety of Alito's participation in those cases is very much in dispute. George Washington University constitutional law professor Mary Cheh has said that "even though these are broadly held funds ... if you are aware of the holdings, you should recuse yourself because you stand to benefit one way or the other." Others such as University of Pennsylvania law school professor Geoffrey C. Hazard Jr. argue that Alito had no obligation to recuse himself from these cases. But even Hazard has conceded that Alito's 1990 pledge to recuse himself is "a basis for mild criticism," given that Alito has since engaged in conduct that is apparently at odds with it.
#3: Alito is a "strict constructionist"
Shortly after Alito's nomination, NBC Today co-host Katie Couric parroted his supporters' claim that he is a "strict constructionist." Such characterizations of Alito's judicial temperament promote the false dichotomy -- advanced by conservatives in support of Bush's judicial nominees -- between strict constructionists (who, supporters claim, will "interpret the Constitution literally") and "judicial activists" (whom supporters describe as "legislating from the bench"). Couric's comments also suggest that Alito's judicial philosophy is not a matter of dispute. But whether Alito is a true "strict constructionist" -- if scholars can even agree on a definition -- and a practitioner of judicial restraint is an issue very much in dispute. Indeed, some legal experts contend that by one measure of "activism"-- a judge's inclination to strike down statutes passed by Congress -- Alito's record is, in fact, that of a judicial activist.
A recent study by Yale law professor Paul Gewirtz and Yale Law School graduate Chad Golder suggests that Supreme Court justices often labeled "strict constructionists" (i.e., justices who purport to discern and apply the true original meaning of constitutional provisions) are the real judicial activists. Gewirtz and Golder ranked the justices according to how often each voted to strike down a law passed by Congress. They found that justices Antonin Scalia and Clarence Thomas, often considered the two most conservative justices on the high court, ranked first and third, respectively, in frequency of votes striking down acts of Congress. While their analysis concerned only Supreme Court justices, George Washington University law professor and New Republic legal affairs editor Jeffrey Rosen recently analyzed Alito's efforts to restrict congressional authority and similarly determined that Alito is an "activist."
In a November 22, 2004, New Republic column, Rosen defined "conservative activists" as those "determined to use the courts to strike at the heart of the regulatory state"; Rosen included Alito in that group. As evidence, he cited Alito's "troubling" view on the limited scope of congressional authority under the Commerce Clause as described in his "dissent from a decision upholding the constitutionality of a federal law prohibiting the possession of machine guns." Rosen concluded that Alito's "lack of deference to Congress is unsettling."
Alito's colleagues on the bench have similarly criticized his apparent willingness to usurp congressional authority. For example, the majority opinion of the 3rd Circuit Court in the case United States v. Rybar also criticized Alito's dissenting view that Congress ought to be required to prove a link between regulation and interstate commerce in such cases. Third Circuit Chief Justice Dolores K. Sloviter wrote: "We know of no authority to support such a demand on Congress"; further, she noted that such a demand would require "Congress or the Executive to play Show and Tell with the federal courts at the peril of invalidation of a Congressional statute."
#4: Alito's 1985 criticism of Roe mirrors legal scholars' opinion that the decision was right but incorrectly reasoned
In his 1985 application for the position of assistant attorney general in the Reagan Justice Department, Alito wrote that he was "proud of his contributions in cases in which the government has argued in the Supreme Court ... that the Constitution does not protect a right to an abortion." Numerous conservative commentators have attempted to downplay Alito's stated position on abortion by likening it to the common argument put forth by some more liberal legal experts that the decision in Roe v. Wade was correct, but the court's reasoning was wrong. In fact, there is a clear difference between arguing that a constitutional right to an abortion does not exist and questioning the particular constitutional principles upon which the court relied in reaching its decision.
Those likening these arguments have often put forth as examples the criticism of Roe articulated by Supreme Court Justice Ruth Bader Ginsburg. Some also cite comments made by author and former Supreme Court clerk Edward Lazarus. But in contrast to Alito, both Ginsburg and Lazarus have clearly stated in their writings on the subject that they believe the Constitution protects a woman's right to an abortion.
Indeed, in a 1984 lecture, Ginsburg strongly criticized the basis for the court's affirmation of a constitutional right to an abortion. She argued that, while the Supreme Court was right to strike down the Texas law in question, it should have done so on the basis of the Constitution's equal protection clause, rather than on an unstated constitutional right to privacy. But Ginsburg affirmed her belief in a constitutional right to abortion during her 1993 confirmation hearings.
In an October 2002 column, Lazarus asserted that "[a]s a matter of constitutional interpretation and judicial method, Roe borders on the indefensible." But he went on to write, "I say this as someone utterly committed to the right to choose, as someone who believes such a right has grounding elsewhere in the Constitution instead of where Roe placed it."
#5: Alito's 1985 job application does not represent his "personal views"
Some media figures have further defended Alito's controversial 1985 job application by claiming that he was not expressing his "personal views" when he wrote that "the Constitution does not protect a right to an abortion." For example, on the November 14, 2005, edition of Fox News' Special Report, host Brit Hume asserted that "these were not personal views he was discussing," but rather "the legal arguments that he made as a lawyer in the Reagan Justice Department."
In fact, Alito made clear in the application that he "strongly" and "personally" believed in the legal arguments in question:
Most recently, it has been an honor and a source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan's administration and to help to advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect the right to an abortion.
#6: The "Ginsburg precedent" should apply to the Democrats' handling of Alito
As occurred following the 2005 nomination of Chief Justice John G. Roberts Jr., reporters and conservative commentators have suggested that Senate Democrats should set aside ideological concerns in considering the Alito nomination because Senate Republicans did just that in their nearly unanimous 1993 confirmation of Ginsburg. This deceptive argument -- the so-called "Ginsburg precedent" -- was recently revived by NBC host Tim Russert and The 700 Club host Pat Robertson. The argument rests, however, on the false claim that Republicans confirmed Ginsburg despite her reputation as a liberal. In fact, she had established a largely moderate record during her 13 years on the U.S. Court of Appeals for the D.C. Circuit and was recommended to President Clinton by a senior Republican on the Senate Judiciary Committee.
Indeed, Ginsburg was considered "a consensus choice, pushed by Republicans and accepted by the president in large part because he didn't want to take on a big fight," as Ruth Marcus wrote in her November 15, 2005, Washington Post column. Sen. Orrin Hatch (R-UT) -- then the ranking Republican member of the Senate Judiciary Committee -- claimed credit in his autobiography, Square Peg: Confessions of a Citizen Senator (Basic Books, 2002), for suggesting Ginsburg as a Supreme Court nominee in 1993 after discouraging Clinton from nominating then-Secretary of the Interior Bruce Babbitt. Hatch even wrote of Ginsburg: "Not many people realize this, but her voting record at the appellate court was very similar to that of another subsequent Supreme Court Justice, Antonin Scalia" [Page 263]. This assessment of Ginsburg's reputation as a moderate judge was substantiated by a study of the 1987 appeals court that found Ginsburg had voted more consistently with Republican-appointed judges -- such as Kenneth W. Starr and Laurence H. Silberman -- than those appointed by Democrats.