THE BLOG

What We Have Learned About Alito

After four days of hearings on the Alito nomination, these are the three main things we have learned:

1. You cannot take him at his word

For example, he said about the case he heard involving Vanguard, the mutual fund company he has substantial money in: "I did recuse myself, and ... I asked that the original decision ... be vacated."

But the Boston Globe reported otherwise: "After Alito ruled in Vanguard's favor in the Maharaj case, he complained about her efforts to vacate his decision and remove him from the case, writing to the chief administrative judge of the federal appeals court on which he sat in 2003: 'I do not believe that I am required to disqualify myself based on my ownership of the mutual fund shares.'"

He said in 1988 that defeated right-wing Supreme Court nominee Robert Bork was "one of the most outstanding nominees of this century ... a man of unequalled intellectual ability, understanding of constitutional history, someone who had thought deeply throughout his entire life about constitutional issues...".

Yet in this week's hearing, he claimed he was not even aware of Bork's widely known view rejecting the importance of respecting past precedents.

It is impossible to believe that an accomplished attorney, who worked in the Reagan Justice Department and who also had a deep interest in constitutional law, would not know such a basic view of a man he praised so highly and so thoroughly.

2. He does not believe the Constitution protects a woman's right to an abortion

We already knew that he said exactly that in 1985. But in the hearing, while he tried to disingenuously signal his attitude would be different as a judge, he steadfastly refused to say Roe is settled law.

When he says he wil have an "open mind" on abortion (the same phrase Clarence Thomas used, before he got on the court and sought to overturn Roe), Alito cannot be taken at his word.

3. He will not provide a check on presidential power grabs

We already knew Alito was a strong backer of the "unitary executive" theory, that presidents hold certain powers that cannot be checked and balanced by other branches of government -- a theory antithetical to our Founders.

But a fine point was put on that in the hearing.

Alito was asked where he stood on the recent Hamdi case, where the Bush Administration jailed a US citizen without giving him an opportunity to contest his imprisonment in court.

The Supreme Court said Bush was wrong, and Justice Sandra Day O'Connor wrote: "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens."

Thomas dissented, writing: "This detention falls squarely within the Federal Government's war powers, and we lack the expertise and capacity to second-guess that decision...I do not think that the Federal Government's war powers can be balanced away by this Court..."

Alito was asked which opinion he supported. He said, "Well, I'm not coming down" on either side.

He claimed to believe the president is not above the law. But since he could not bring himself to reject an opinion that said the President can make his own law, once again, Alito cannot be taken at his word.

This man cannot be allowed to occupy the swing seat of the Court. By filibuster if necessary. Tell your Senator.