Gathered by Elizabeth Bukey, UUA Washington Office for Advocacy and Witness Legislative Assistant for Civil Rights and Religious Liberty.
Source: The Washington Post
Democrats, especially Sen. Dianne Feinstein (D-CA) repeatedly questioned Alito closely about his respect for precedent, and whether or not he would overturn Roe vs. Wade. They seemed to grow increasingly frustrated at his refusal to give a straight answer. Feinstein repeatedly asked if Roe is "settled law", a term that [Judge John] Roberts used in his testimony to the committee, and a term which Alito has used in the hearings in reference to other issues, such as "one man, one vote." For some reason, he wouldn't apply this term to Roe:
FEINSTEIN: But you do not agree that it is well settled in court?
ALITO: I think that depends on what one means by the term "well settled."
FEINSTEIN: I actually agree with you because others have said that and then gone out and voted to overthrow it. So it's like, "I have no quarrel with it."
ALITO: Well, let me just say this: As a judge on the court of appeals or if I'm confirmed as a justice on the Supreme Court, it would be wrong for me to say to anybody who might be bringing any case before my court, "If you bring your case before my court, I'm not even going to listen to you; I've made up my mind on this issue; I'm not going read your brief; I'm not going to listen to your argument; I'm not going discuss the issue with my colleagues. Go away. I've made up my mind." That's the antithesis of what the courts are supposed to do. And, if that's what "settled" means, then I think that's not what judges are supposed to do..."
According the Post , Sen. Dick Durbin (D-IL) told reporters: " Sam Alito would not use those same words ['settled law']. It really, I'm afraid, leaves open the possibility that we are considering the nomination of a justice who will change 30 years of law in this country, a dramatic change to the American society. "
Senator Schumer raised concerns about Alito's view on abortion and health exceptions. To paraphrase Sen. Schumer, Alito "still refused to distance himself from a broad, unqualified statement, without exception, that the Constitution does not protect the right to an abortion".
SCHUMER: OK. Now, let me ask you this. When you wrote that statement, you did not -- as we discussed yesterday -- when you wrote that the Constitution does not protect the right to an abortion, you had no exceptions. So that would mean, at least in 1985, your view then, there would be no constitutional protection for a woman to terminate her pregnancy even if the termination was needed to preserve her future ability to have children, right?
ALITO: Senator, it was a general statement that didn't go into -- it didn't...
SCHUMER: But it had no exceptions. You didn't make that...
ALITO: It was one sentence, and it certainly didn't represent...
SCHUMER: There was no -- you didn't write any exception for that situation. Correct? It just said the Constitution does not protect. It was without exception. And, yesterday, you didn't argue me when I mentioned that without exception. ...
ALITO: Could I just answer that question? It's one sentence and it certainly is not an attempt to set out a comprehensive view of the subject.
SCHUMER: No, I understand that. But it was a very strong statement. It didn't talk about any exceptions at all. And the way I read that statement, even if a woman was raped by her father, she'd have no constitutional protection to have an abortion and terminate that pregnancy. If you believe the Constitution protects no right to an abortion that would follow, wouldn't it?
ALITO: I think the statement speaks for itself, and it's one sentence and it's not an effort to set out a comprehensive view of...
SCHUMER: Knowing these examples, do you still refuse to distance yourself in any way from a broad, unqualified statement, without exception, that the Constitution does not protect the right to an abortion? No ands, ifs or buts, is my words.
ALITO: What I actually said was that I was proud of my participation in the Thornburg case in which the government made the argument that it made in the Thornburg case...
SCHUMER: But you said in the previous sentence to that statement that you personally held those views.
ALITO: That's correct. But what I was talking about there was the Thornburg case and nothing more than the Thornburg case.
SCHUMER: I understand. But you haven't rethought the position at all, even knowing these extreme cases and the hardship that it might cause?
ALITO: Well, what you have pointed out is exactly why, if the issue were to come up, and one were to get beyond stare decisis , the whole judicial decision-making process would have to be gone through. ...
ALITO: And when I wrote the statement what I was saying was that I was proud of what I had done in relation to the Thornburg case, which was to write the memo that the committee is aware of, which did not argue that Roe should be overruled, did not argue that the government should argue that Roe should be overruled, but that the decision should be challenged on other grounds that were quite similar.
SCHUMER: I understand what you wrote, but you also -- we can bring the statement up here, but I don't want to go over the thing of yesterday. I would just ask you to think of all the consequences of a broad statement, even from 1985, that the Constitution does not protect the right to abortions. Not an exception of health of the mother, not an exception of rape or incest, not an exception of any of these others.
ALITO: It was one sentence. And I think what you're saying highlights the importance of not addressing this until the judicial process takes place where all of this complexity would be taken into account.
SCHUMER: In all due respect, sir, I think it highlights the importance of an obligation to discuss it, particularly in light of a strong statement before. But we'll have to differ on that. "
Alito's history in cases involving discrimination based on race, gender, and disability, as well as in cases involving people claiming rights under the First Amendment, have been troubling to many people. Here is one example of questioning around this area of concern – with the response indicating that Jude Alito never really answered Senator Durbin's question:
DURBIN: "...murder cases here, we find that the local prosecutors had eliminated all the African-Americans in four murder trials that had taken place during the year that led up to his trial. And they raised the question, in his case, whether there had been a conscious effort to eliminate African-American jurors in this case involving an African-American defendant.
And you dismissed the statistical evidence of these all-white juries. And you made a statement that said:
The significance of an all-white jury was as relevant as the fact that, quote, "five of the past six presidents of the United States have been left-handed," end of quote.
That's a troubling analogy. And I'm not the only one troubled. Your colleagues in the 3rd Circuit were troubled, as well.
Here's what they said, "The dissent" -- your dissent -- "has overlooked the obvious fact there's no provision in the Constitution that protects persons from discrimination based on whether they're right-handed or left-handed. To suggest any comparability to striking a juror based on their race is to minimize the history of discrimination against prospective black jurors and black defendants."
Why did you use that analogy that apparently is so inappropriate?
ALITO: Well, the analogy went to the issue of statistics and the use and misuse of statistics and the fact that statistics can be quite misleading. Statistics are very powerful, but statistics can also be very misleading. And that's what that was referring to. There's a whole -- I mean, statistics is a branch of mathematics, and there are ways to analyze statistics so that you draw sound conclusions from them and avoid erroneous conclusions from them.
Sometimes when you see a pattern it's the result of a cause, and sometimes when you see something that looks like it might be a pattern it's the result of chance.
Riley was a very, very difficult case. And I can tell you I struggled over that case because the issue of racial discrimination in the criminal justice system is an issue of enormous importance.
Obviously, it's very important for the defendant. It's important for the society so that everybody knows that everyone in this country is treated equally regardless of race. And it's important for law enforcement, because I know, from years as a prosecutor, that nothing is a greater poison for law enforcement than even the slightest hint of unfairness.
The issue of racial discrimination in the jury had to be viewed by our court and by me under the habeas corpus statute that Congress passed. And that gave us an important role to play, but a very limited role.
The Pennsylvania -- and what the habeas corpus statute says is that if the state courts have decided a question on the merits and they've applied the correct legal standard, the correct constitutional standard, we can't authorize granting of a writ of habeas corpus unless they were unreasonable. ...There was the judge who heard the state habeas case and the Pennsylvania Supreme Court. And the Pennsylvania Supreme Court, as I recall, was unanimous on the issue that there hadn't been racial discrimination in the selection of the jury in the case. Then the case came up to us, and the issue was whether the state courts were unreasonable in finding that the particular peremptory challenges at issue in this case were not based on race. And it was a tough question, but I didn't see how we could overturn what they had done under the habeas standard."
