Bench Memos

NRO’s home for judicial news and analysis.



I received a thoughtful email after that last post:

“I think the criticism put forward by Lizza and Bruce Fein of the administration and conservatives more generally with regards to this nomination is fair. I’ve found myself frustrated by their approach (see this cartoon which I think captures the situation pretty well ).

“I think, however, the criticism of Alito, in particular, to be unfair for several reasons. (Admittedly you haven’t jumped totally on that bandwagon as you write ‘it appears’ concerning what he has said about his thoughts on Roe as an original matter and in an earlier post wrote that we couldn’t necessarily rely upon senators’ accounts of their meetings with Alito.) But I still think we need to differentiate between Alito’s conservative defenders (including the administration itself) and Alito.

“This criticism of Alito is unfair for a number of reasons: 1) as you noted, we don’t know what Alito has said rather, we have only the reports of self-interested senators who we cannot trust; 2) these meetings with the senators in which only one side will be able to tell the media what was said are very bad fora in which to argue against Roe; 3) the reports of what Alito has said are not troubling but rather, I think, bespeak a real subtlety, nuance, prudence, and shrewdness on the part of Judge Alito.

“What has he said (if we are to believe the reports of Senators)? Basically a bunch of facts. My job application was a piece of advocacy for a job. True (this doesn’t mean that he wasn’t sincere in that application or even that he has distanced himself from those words). That was 20 years ago. True. A lot has changed. True. As a judge, I don’t make my personal opinion of what the best policy would be as the lodestar of my decision-making (i.e. I can put my personal opinions as to the best policy as an original matter aside). True as demonstrated over 15 years. I’ve been a judge for 15 years. True. Precedent has a certain weight which I don’t take lightly. True (though it says nothing about how greatly he weighs precedent). None of these statements disavows his 1985 job application or his memorandum in Thornburgh. These statements do avoid giving his executioners the rope with which to hang him.

“These statements also haven’t been untruthful as far as we can tell. But they really don’t say much. (Of course the 1985 memo and application are relevant. But certainly Judge Alito need not highlight that point.) Nothing he said contradicts the position he quite clearly held in 1985. Nothing he has said is even, in my mind, misleading.

“I actually think the comparison to St. Thomas More is apt here. As you know, More was shrewd and careful with his words to those allied against him. He didn’t want to die. He was willing to be shrewd but was always truthful in attempting to avoid death. I can imagine Judge Alito doesn’t want to be shot down as a nominee. I can’t see that he has been untruthful in any way. In fact, Stuart Taylor today reports that Alito has not distanced himself from the statements. He writes that an ‘administration supporter with knowledge of the private meetings [states] . . . that Alito has made clear to senators that he stands by what he wrote then.’

“Now I do think you, Fein, Lizza, have a point about the administration and conservatives more generally. They shouldn’t be ceding this argument. But they are. They are granting the assumption that believing Roe should be overruled is somehow illegitimate or a barrier to confirmation for the Court. That is ridiculous. And they should not cede this ground because a) it makes it harder for future nominees who have expressed doubts about Roe, b) this isn’t a losing issue for them especially when Roe is explained properly, and c) it is wrong as a philosophical matter. (By the way this is one reason I am looking forward to your book: I especially want to read your chapter arguing that the ‘conventional wisdom that a repeal of Roe would be a disaster for Republicans is . . . quite foolish.’ I agree and think that Republicans have been much too weak on this issue for their own good.)”


Sign up for free NRO e-mails today:

Subscribe to National Review