By Steve Weinstein
By Devon Maloney
By Tessa Stuart
By Alison Flowers
By Albert Samaha
By Jesse Jarnow
By Eric Tsetsi
By Raillan Brooks
After all those hours of senatorial grilling, how has Judge Samuel Alito done? It depends on whom you ask. The Republicans are impressed with the Supreme Court nominee. The Democrats are frustrated. And most high school sophomores are somewhere between delighted and confused because they probably could have ridden most of Alitos vague answers to an easy A in civics class. But then again, they surely couldn't use the concept of stare decisis as a stiff arm as confidently as Alito. Here's a sampling of Alito's more mind-boggling ambiguities.
1. Alito, in response to Senator Arlen Specter's questions about a woman's right to choose an abortion and the right to privacy in the Constitution:
I do agree that the Constitution protects a right to privacy. And it protects the right to privacy in a number of ways. The Fourth Amendment certainly speaks to the right of privacy. People have a right to privacy in their homes and in their papers and in their persons. And the standard for whether something is a search is whether there's an invasion of a right to privacy, a legitimate expectation of privacy.
2. Alito, in response to the Specter's asking about the significance of reliance on abortion (as stated in Casey v. Planned Parenthood):
I think the doctrine of stare decisis is a very important doctrine. It's a fundamental part of our legal system. And it's the principle that courts in general should follow their past precedents. And it's important for a variety of reasons. It's important because it limits the power of the judiciary. It's important because it protects reliance interests. And it's important because it reflects the view that courts should respect the judgments and the wisdom that are embodied in prior judicial decisions. It's not an exorable command, but it is a general presumption that courts are going to follow prior precedents.
Well, reliance is, as you mentioned, Mr. Chairman, one of the important foundations of the doctrine of stare decisis. It is intended to protect reliance interests.
And people can rely on judicial decisions in a variety of ways. There can be concrete economic reliance. Government institutions can be built up in reliance on prior decisions. Practices of agencies and government officials can be molded based on reliance. People can rely on decisions in a variety of ways.
I think he getting at -- he was right in saying that reliance can take many forms. It can take a very specific and concrete form, and there can be reliance in the sense that he was talking about there.
I think what [Rehnquist's] talking about is that a great many people -- and, in that instance, police departments around the country over a long period of time -- had adapted to the Miranda rule, had internalized it. I think that all the branches of government had become familiar with it and comfortable with it and had come to regard it as a good way, after a considerable breaking in period, a good way of dealing with a difficult problem, and the problem was how to deal with interrogations leading to confessions. . . .
4. Alito, in response to Specter's question concerning Alito's 1986 statement that "since the president's approval is just as important as that of the House or Senate, it seems to follow that the president's understanding of the bill should be just as important as that of Congress":
I think the most important part of the memo that you're referring to is a fairly big section that discusses theoretical problems. And it consists of a list of questions. And many of the questions are the questions that you just raised.
And in that memo, I said, "This is an unexplored area, and here are the theoretical questions that" -- and, of course, they are of more than theoretical importance -- "that arise in this area."
That memo is labeled a rough first effort at stating the position of the administration. I was writing there on behalf of a working group that was looking into the question of implementing a decision that had already been made by the attorney general to issue signing statements for the purpose of weighing in on the meaning of statutes.
And in this memo, as I said, it was a rough first effort, and the biggest part of it, to my mind, was the statement: "There are difficult theoretical interpretive questions here, and here they are." And had I followed up on it -- and I don't believe I had the opportunity to pursue this issue further during my time in the Justice Department -- it would have been necessary to explore all those questions.
Well, Senator, I have wracked my memory about this issue, and I really have no specific recollection of that organization.
But since I put it down on that statement, then I certainly must have been a member at that time.