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U.S. Supreme Court

A shame nominees must play it safe

By BILL ADAIR
Published December 11, 2005

Egads!

Did Samuel Alito actually have an opinion about abortion? He once wrote a memo that said the Constitution "does not protect a right to an abortion." In another one, he advised the Reagan administration how to overturn the landmark case of Roe vs. Wade.

Does this mean he is opposed to abortion?

Of course not! his supporters say. Alito was merely reflecting the opinions of the Reaganites who employed him. They insist Alito doesn't have an opinion on that issue - or anything else that might be controversial.

These days, Supreme Court nominees must be blank slates. The Bush administration and its supporters have gone to great lengths to rebuff any suggestion that Alito, like previous nominees John Roberts and Harriet Miers, had an honest-to-goodness opinion on anything.

The tactic is to avoid any hint of controversy and convince us the nominees are robotic referees rather than actual human beings with hearts and minds.

In his confirmation hearings, Roberts likened himself to an umpire who would call balls and strikes but wouldn't favor any team. Roberts revealed his favorite movies (Dr. Zhivago and North by Northwest), but said little else.

Likewise, the White House, its allies and even Alito himself have used creative rebuttals any time someone has suggested he might have an opinion. Here are some of the techniques they've used:

He was speaking for his boss. Alito used this to explain his abortion memos. The same excuse was used to explain John Roberts' 1990 brief opposing Roe vs. Wade, when he was a deputy solicitor general.

He was applying legal precedent. This has been a convenient response for Alito because he has been an appellate judge for 15 years. When asked about his rulings on abortion and anything else that raised a fuss, the White House and its allies have said he wasn't giving his personal opinion, he was simply following a Supreme Court precedent.

He was just a kid. When critics said early memos and job applications by Roberts and Alito indicated they were conservative ideologues, their defenders said the writings were a reflection of youthful exuberance and don't necessarily reflect the nominees' current feelings because, of course, nominees don't have feelings.

She never said a word. After Miers was nominated, the White House went to extremes to insist the top Bush aide never had conversations about abortion with the president or anyone else at the White House.

Why the charade?

In our volatile political climate, the White House is afraid that any memo, any hint of a point of view, could fire up the opposition.

An actual human being with opinions undoubtedly would be unpopular with some group, prompting a blitz of mean-sounding TV ads opposing the nomination. So Alito and his supporters play it safe.

Indeed, Alito's abortion memos have given hope to his opponents that he can be defeated. Most Democratic senators have not taken a position on Alito, but his comments on abortion could embolden them to oppose him.

Sen. Arlen Specter, the Republican chairman of the Senate Judiciary Committee, told the Washington Post last week that "his nomination faces some real hurdles." Alito's hearings will be crucial in determining how Democrats and moderate Republicans vote.

The game of excuses is silly and disingenuous. It's too bad we can't have a frank discussion of a nominee's views.

Isn't it reasonable to think that our judges are a reflection of us? Some people support abortion rights and some are opposed. Some are uncomfortable with gay marriage, while others support it.

Our nominees should be honest about their feelings on those issues and many others. They may want to say their feelings won't affect their rulings, as Alito has, but they could at least acknowledge that they are real human beings.

But alas, the political climate is so polarized that we can't talk honestly. The slightest opinion could turn into a firestorm.

So when the Alito hearings start next month, don't expect to learn much about his views.

Except for his favorite movies, of course.

Washington Bureau Chief Bill Adair can be reached at adair@sptimes.com or 202 463-0575.

[Last modified December 12, 2005, 14:15:05]