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Washington-Predicting how a U.S. Supreme Court nominee would perform as a justice is as risky a business as predicting the outcomes of Supreme Court cases. Who could have foreseen the stunning opinion in 1992 affirming the central holding of Roe v. Wade by a trio of justices-all Republican presidential nominees and two who were sharp critics of that landmark abortion decision. Who in 2004 would have wagered that the most liberal view of the rights of a citizen enemy combatant, detained in the war on terror, would come from conservative stalwart Antonin Scalia? And yet each confirmation process becomes a hunt for clues, not just to a nominee’s overall judicial philosophy, but to how he or she might rule on the most divisive legal and constitutional issues of the time. And at the end of the process, there is much frustration among all participants, even among some of the nominee’s supporters. When the hearings on the Supreme Court nomination of Judge Samuel Alito wrapped up last week, Senator Joseph Biden, D-Del., a member and former chairman of the Senate Judiciary Committee, declared that the confirmation process was “broken.” It was no longer possible, he said, to get answers to legitimate questions, so why waste everyone’s time? Other politicians and legal scholars countered that there is nothing wrong with the process-it’s the players. Senators, in particular, need to ask sharper, more sophisticated questions to get more information from understandably, politically question-shy nominees, they said. “The Supreme Court is largely a function of the president and the Senate,” constitutional scholar Michael Gerhardt, of the University of North Carolina School of Law, reminded the Judiciary Committee last week while urging senators to make independent judgments about Alito on whatever bases they think are important. Despite frustration with the process, the Alito hearings, like the hearings for Chief Justice John G. Roberts Jr., were revealing of the nominee, Congress and the status of certain precedents in the law. The nominee Going into the hearings, considerable information was available about Alito, a judge on the 3d U.S. Circuit Court of Appeals, through a huge body of opinions during his 15 years on the bench. But because he is an appellate judge often applying Supreme Court precedent, little was known about his own view of some of those precedents. Besides his opinions, he also had expressed certain potentially controversial views in memos written when he worked in the U.S. Department of Justice and in a 1985 job application seeking a department promotion. He had advocated so-called signing statements by the president when signing legislation into law. Those statements, he had said, would provide the president’s interpretation of what the law meant and should be as important as legislative history in interpreting a law. He wrote that he strongly believed in the supremacy of the elected branches of government, and that the Constitution does not protect a right to abortion. He also had written that he was drawn to the study of constitutional law as a college student because of his disagreement with Warren Court precedents on criminal procedure, the establishment clause and reapportionment. By the end of his hearings, observers had learned: The signing-statement memo was a “rough first draft,” according to Alito, in which he never had the opportunity to go back and explore the theoretical questions raised by it. His statement about the supremacy of the elected branches was “inapt” (all three branches are equal, he emphasized). He believed the one-person, one-vote principle in Reynolds v. Sims, 377 U.S. 533 (1964), was settled law. His only concern about that Warren Court principle, he said, was whether it was applied too strictly and thus impractical in certain redistricting situations. His abortion statement in 1985 was “a correct statement of what I thought in 1985 as a line attorney in the Department of Justice.” But he refused repeatedly to say what he thought today, or whether Roe is settled law. It is not settled law, he said, if it means Roe can never be re-examined. The high court’s two precedents striking down bans on the use of contraceptives by married couples and single people, Griswold v. Connecticut, 381 U.S. 479 (1965), and Eisenstadt v. Baird, 405 U.S. 438 (1972), are based on the right to privacy and are settled law, as is the landmark Brown v. Board of Education, 347 U.S. 483 (1954). He does believe in the right to privacy as “understood by the Supreme Court now” to be based on the 14th and the Fourth amendments. He does not believe the high court should rely on foreign law in interpreting the Constitution. He agrees with Justice Sandra Day O’Connor’s statement in the 2004 enemy combatant decision that war is not a blank check for the president. The Bill of Rights, he added, applies in peace and in wartime. But on a host of other questions, from commerce clause issues to religion clause issues, Alito did not give his own views. He either explained current Supreme Court doctrine or declined to answer because issues could come before him on his court or the Supreme Court. Congress and the law With the Alito hearings, it is now clear that Supreme Court nominees believe it is almost a condition of confirmation to express a belief in the right to privacy and the settled and correct nature of Griswold, Eisenstadt, Brown and Reynolds. That belief, according to scholars and others, reflects the political and social acceptance of those precedents. They are, in a sense, no longer on the table. Still on the table, however, is Roe. And while neither Alito nor Roberts would call Roe “settled,” they did describe it as an important precedent deserving of stare decisis. And that description, some say, shows that even though Roe is still on the table, it is more accepted than not politically, because a direct statement of opposition could mean serious trouble or defeat for a Supreme Court nominee. The Alito hearings, like the Roberts hearings, also revealed the ongoing tension between Congress and the judiciary over controversial rulings in such areas as limits on Congress’ lawmaking power under the commerce clause, end-of-life decisions and gay rights. Senators quizzed the nominee, who had very little to say in response, about stripping the high court’s jurisdiction over certain categories of cases and term limits for federal judges.

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