I Hate Confirmation Hearings
SCHUMER: Does the Constitution protect the right to free speech?
ALITO: Certainly it does. That's in the First Amendment.
SCHUMER: So why can't you answer the question of: Does the Constitution protect the right to an abortion the same way without talking about stare decisis, without talking about cases, et cetera?
ALITO: Because answering the question of whether the Constitution provides a right to free speech is simply responding to whether there is language in the First Amendment that says that the freedom of speech and freedom of the press can't be abridged. Asking about the issue of abortion has to do with the interpretation of certain provisions of the Constitution
From the WaPo transcript.
That's why confirmation hearings are annoying. The issue of abortion rights IS important. It's something the country should know before a judge takes the bench, and Alito's softshoe dance is disingenuous; if he can say whether the Constitution protects free speech, he can say whether he thinks it protects abortion. He doesn't have to get specific if he thinks it's a gray area. He could say, "No it absolutely does not," or "I believe that one's rights to bodily privacy and autonomy are protected to some extent by amendments X, Y and Z, but that the state also has a legitimate interest in preventing a fetus from being aborted, which in some situations may trump the right to bodily autonomy and privacy, but it isn't a bright line."
But instead, because this one issue is now the third rail of confirmation hearings, we end up with the absurd exchange between Alito and Schumer. I don't like it when supposedly "liberal" judges dodge the question, and I don't like it when Alito does it, particularly when the reasons are as lame as Alito's. He can't offer an opinion as to whether the Constitution protects abortion rights, because it involves "interpreting" terms like "liberty" and "due process"....? Bull. The Constitution also doesn't talk about judicial review, which Marbury v. Madison had to "interpret" to find; I would like Alito to say he can't offer an opinion on that one either.
Lest there's any doubt, however, look at this exchange between Alito and Cornyn:
CORNYN: And outside of let's say the Fourth Amendment, perhaps, does the right to privacy appear explicitly stated in the Constitution?
ALITO: There is no express reference to privacy in the Constitution. But it is protected by the Fourth Amendment and in certain circumstances by the First Amendment and in certain circumstances by the Fifth and the 14th Amendments.
CORNYN: And the reason it's protected is because the Supreme Court has so interpreted the Constitution. Isn't that correct, sir?
ALITO: That's correct. It's a question of interpretation rather than simply looking at what is in the text of the document.
Now, Cornyn was trying to bail Alito out here, and ends up doing the exact -opposite-. Look at what Alito said: "Privacy rights aren't explicit, and you have to interpret other language to find them there. But they do exist."
This is right on the heels of him arguing he can't say whether a right to abortion exists because it involves "interpretation."
And this is why confirmation hearings stink. Each side will go berserk if they get a committal answer on a relatively straightfoward legal issue, which just happens to be a nuclear social and political issue. So we all have to pretend that there are principled reasons to dodge the question.
There aren't. Just answer the damn question, and let the Senate figure out how to confirm a nominee that -will- answer it.