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One-sided silence

However clever, Alito's ambiguity on abortion harms the nation

Issue: "Five-man legacy," Jan. 28, 2006

Pro-lifers who are cheering the likely confirmation of Samuel Alito as the newest justice on the U.S. Supreme Court might be advised to think about backing off to what we have sometimes called one-handed applause.

In one sense, Mr. Alito seemed to sail through his hearings. The usually cynical Daniel Schorr of National Public Radio surprisingly agreed with the editors of The Wall Street Journal. Both said that the nominee's Democratic challengers "didn't lay a glove on him."

But when you think about the price exacted by the liberals for Mr. Alito's predicted victory, you have to wince. With regard to the very most important issue that could possibly come before the court in the next few years, Mr. Alito was forced to seal his lips if he wanted any chance of being approved.

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It's altogether typical, of course, for a nominee to be careful not to get overly gabby about his or her views on controversial subjects. Mr. Alito exercised that caution on topics other than abortion, and so did John Roberts-on a variety of subjects-a few months ago when he was grilled as a nominee to become chief justice of the United States. So has every single candidate for a judgeship who has been interviewed by the Senate Judiciary Committee. Such circumspection makes good sense.

So why has it become necessary in our culture to be circumspect in only one direction? Why is it absolutely critical for pro-lifers to walk the tightrope while pro-abortionists can loudly announce their preferences?

Ruth Bader Ginsburg, for example, when she was examined for her post in 1993, left no doubt in the minds of both her supporters and detractors that she was a staunch supporter of Roe v. Wade. Not for a second was it held against her. Indeed, it was expected of her.

The same held for Stephen Breyer, Bill Clinton's other nominee during his two-term tenure, confirmed in 1994. To the victor go the spoils-and everyone seemed to understand that with Mr. Clinton's clear electoral triumphs in 1992 and 1996 went the right to name pro-abortion men and women as judges. If you were a pro-life senator, you could disagree with those nominees' positions, and you could even vote against them if you thought you should. But you had no right to mount some moral pedestal to serve arrogant notice that the nominees had some duty to hide any leanings contrary to your own.

How did we get to the place where one side in a great national debate has the right to be open about its position while the other side is expected not just to be circumspect but altogether silent? Even from a nonpartisan point of view-indeed, maybe especially if you aren't sure what to think about the subject of abortion-it's a very bad approach to a much-needed national effort to resolve the matter.

Wouldn't it have been far better, for example, for the whole nation to hear a robust discussion of some of the related issues? Wouldn't we have been better served to hear Mr. Alito's deepest thoughts on the matter? As it was, both supporters and opponents have engaged in weeks of pretense. Even with Republicans in charge, the nominee was virtually told that unless he skated right to the edge of outright lies, his opponents on the committee could be counted on to carve a big hole in the ice and sink him for good.

Nowhere, perhaps, was such pretense clearer than in the questioning about stare decisis, the tradition of the Supreme Court to stand by decisions it has rendered earlier in its history. Did Mr. Alito hold to stare decisis, he was asked repeatedly-and with the obvious implication that pro-abortion lawmakers wanted a pledge that he would never seek to undo Roe v. Wade. "There needs to be a special justification for overruling a prior precedent," Mr. Alito artfully responded to pro-abortion senator and committee chairman Arlen Specter.

Mr. Specter didn't particularly like that answer, but neither did the pro-life community. From one point of view, it was both clever and cunning. But the very ambiguity that allowed Mr. Alito to escape in the manner he did, and probably to win Senate approval, is ultimately damaging to the nation. When neither his supporters nor his opponents are really sure of the position a public figure has staked out, no one is served well.However clever, Alito's ambiguity on abortion harms the nation

Joel Belz
Joel Belz

Joel, WORLD's founder, writes a regular column for the magazine and contributes commentaries for The World and Everything in It. He is also the author of Consider These Things.

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