The Corner

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Alito & Kennedy


The nominee seems–I stress that seems, since we have only Kennedy’s characterization of the meeting to go on–to be going too far to win the vote of people who are never going to vote for him. “Kennedy said Alito, 55, told him he wrote the [1985] memo as someone ‘who was interested in getting a job’ in the Justice Department as deputy assistant attorney general. ‘So I asked him, “Why shouldn’t we consider that the answers you are giving today are an application for another job?”‘ Kennedy said.” It’s a perfectly reasonable criticism. If Alito is saying the things he is saying for political reasons, then I’d say that he, and the White House, are overreacting to the criticisms of the memo.

On the other hand, conservatives shouldn’t overreact to Alito’s comments either. I don’t mind if Alito says that he’s smarter and wiser than he was in 1985, or even that he has a better understanding of civil liberties than he did then–so long as he does not suggest that being smarter, etc., means being less opposed to Roe than he was then.

He’d be better off saying that his statement preceded Casey, that as a justice he would be bound to consider precedent, and leave it at that. He doesn’t need to go any further, and he shouldn’t.