November 16, 2005,
The news that Samuel Alito wrote in 1985 that he “believes very strongly” that the Constitution does not protect a right to abortion is slightly bad news for his confirmation chances. But it’s good news for conservatives, and not only because it increases the odds that he will vote as a conservative on the Supreme Court.
First of all, the revelation doesn’t lower his chances of confirmation all that much. If it had come out the day he was nominated, and been in the news stories on his nomination during the first day or two of coverage, it would have hurt him substantially. (“The president today nominated Samuel Alito, a judge who has said that he disagrees with Roe v. Wade. . .”) But now the public has already formed an impression, and Washington formed a conventional wisdom about his likely confirmation, that will be hard to dislodge.
The early impression seems to matter more than almost anything else in these confirmation fights. John Roberts’s conservative record dribbled out over the weeks following his nomination. If it had all come out that first day, his reception would have been worse, too.
Second, if Alito is confirmed, this news will make that confirmation more valuable. He will have been confirmed without having said that he has no opinion about Roe, as Clarence Thomas did, and without having said that previous anti-Roe actions merely reflected the views of his employers, as John Roberts did. It is true that Alito will not have said whether Roe’s wrongness outweighs its force as precedent, which would amount to saying how he would vote on the issue as a justice. But he will have gone as far against Roe as any nominee since the Bork debacle of 1987.
His confirmation would thus establish that it is acceptable for a nominee to take the view that Roe was wrongly decided, at least as an original matter. Taking that view would not have disqualified a nominee from getting confirmed; it would not even have disqualified him from getting significant Democratic support. It might not even be enough to trigger a filibuster attempt.
The news that Alito wrote what he did in 1985 would then have made it easier for the next nominee for a Supreme Court vacancy to survive being on record against Roe. Constitutionalists would have made the first stage of a break from the prison that is the post-Bork confirmation process.
The next vacancy might well swing the Court in a conservative direction, which would make it harder for an outspoken conservative to get through. But the existence of the Alito precedent will create some helpful countervailing pressure.
White House strategists will no doubt want to minimize the impact of the 1985 story on Alito’s confirmation. They can, and should, say, accurately, that Alito’s view that Roe was a flawed interpretation of the Constitution does not necessarily mean that he would overturn it. They can, and should, say that Alito is a careful jurist who takes account of precedent. But they ought not to go any further. They should not, for example, suggest that Alito no longer agrees with his 1985 view. Looking around the corner, his having expressed that view could prove very helpful to them.
Ramesh Ponnuru, an NR senior editor is at work on a book about the sanctity of life and American politics.