Carol Platt Liebau: On Alito and Roe

Monday, November 28, 2005

On Alito and Roe

In today's Wall Street Journal, Roger Pilon offers the most succinct explanation yet why it would be wrong to force Judge Alito to admit either (1) that he erred in his 1985 memo expressing anti-Roe views or (2) that he believes the power of precedent outweighs the importance of interpreting the Constitution correctly as an implicit condition of his being confirmed.

But it should be clear that were Judge Alito to answer yes or no to [whether he would apply the principles of stare decisis to Roe v. Wade cases], he would in effect be revealing his hand on a wide array of questions potentially before the court, including Roe. The effect, insofar as his answer would correlate with a Senate decision to confirm or not to confirm, would be to decide those cases politically, not legally, which is why he should refuse to answer that question.

In short, requiring Judge Alito to answer those questions would be to turn the judicial nomination hearing into nothing more than a political exercise in which future judicial votes are traded for present Senate votes. It would be an unprecedented reworking of the relationship between the judicial branch and the Senate -- and would completely undermine the independence of the judiciary. Which is why even liberal judges and law professors should speak out against any effort to pin Alito down on Roe issues. But on that, I'm not holding my breath.


Anonymous dodger said...

This concept goes to an anology. If I were in the dock I would not want to feel that I was pre-judged, either by judge or jury. Of course, when a case gets to the Supreme Court the facts are not of issue, only the law. It is telling that the decisions are so often split. It tells me there has been some pre-judging going on.

8:36 AM  

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