Bench Memos

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Views, Personal and Constitutional


Like Gerry Bradley, I thought Ramesh’s piece this morning was (as usual) a fine analysis of where we now stand in the Alito nomination story. Let me add a few more thoughts on this business of Judge Alito’s “personal” views on abortion and Roe v. Wade.

Ever since Sammon of the Washington Times broke the story of Alito’s statement in his job application to work for Attorney General Ed Meese in 1985, this has been a very strange week. By Wednesday, we were hearing from Democratic senators Feinstein, Kennedy, and Bingaman that the judge had somehow backed away from that 1985 statement in private conversations with them. It was 20 years ago, that was an application for a political position in the executive branch, he was now and had been for 15 years a judge who must take a more detached view of hot political issues, and so on. The key distinction was offered up by Senator Feinstein, who said that Alito had told her (in her paraphrase of him) “I’m not an advocate, I don’t give heed to my personal views.” One of today’s papers carried a similar disclaimer from Republican senator John Cornyn, though it wasn’t attributed to Alito himself: “Judges aren’t supposed to impose their personal views from the bench . .”

But hang on now. In that 1985 statement, Alito had written that it was “an honor and a source of personal satisfaction” to have worked, in the Solicitor General’s office where he then was, to “advance legal positions in which I personally believe very strongly,” including the position that “the Constitution does not protect a right to an abortion.”

Alito’s satisfaction was “personal,” and his belief in the positions taken by the administration was “personal.” But what was or is “personal” about the view that there is no constitutional right to an abortion?

I have to pound on my students about this all the time. “Well,” they timorously offer in today’s namby-pamby PC world, “this is just my personal view, but . . .” They are so conditioned by the prevailing relativism, which instructs them not to “impose their views” on anyone, that I have to disabuse them first of the idea that they can ever avoid such “imposition” if they are going to be citizens, voters, lovers, parents, workers, what have you. The question is, in what roles they will play are they entitled to “impose” what kind of views? We expect voters and elected officials to impose political views, and judges to impose legal ones.

Another way to put this is that the adjective “personal” just doesn’t do any work in front of the noun “opinion” or “view.” What other kind of opinion can I have but one that is personal, that is mine?

On the subject of abortion, one can have a variety of opinions–moral, political, and legal or constitutional–and all of them “personal,” of course. One might simultaneously think that every abortion is a great misfortune and a grievous immorality, that politically the wisest public policy is to permit women to make this choice for themselves, and that constitutionally the case for a “right” to abortion is completely fraudulent. (Readers take note that I am not saying any of these is my opinion, before you write to me.)

Samuel Alito declared in 1985 that he strongly believed that as a constitutional matter there is no “right” to an abortion. To call that long ago statement merely “personal” accomplishes exactly nothing. And Alito’s language in 1985 was plain and clear, that he was expressing a legal opinion, not a moral or political one. So the fair question today is, does he now, as in 1985, believe that Roe v. Wade was incorrectly decided? We don’t know his moral or political view of abortion from 1985, or today, and we neither need it nor want it. But his constitutional opinion we do want and need. And senators are entitled to have it, if they wish it, as a condition for their confirmation votes.

Now one possibility that has arisen this week is that various senators (in both parties) are recounting half-baked, “personally” spun accounts of conversations they had with Judge Alito in private. Maybe they seek to box him in somehow to versions of those conversations that he is not in any position to contradict for the next several weeks. But as I’ve said before here, this is part of our crazy “ethic” of judicial nominations: the nominee is expected to commune privately with senators, who are then privileged to be the only sources for what was said in those meetings. It would be better all around if judicial nominees submitted to their own press interviews, before and during the Senate hearings. Alito on Fox News Sunday? I say the White House should go for it.


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