E.J. Dionne accuses Judge Alito and the White House of “dodging” a debate over Roe v. Wade. However, he makes no argument as to why this particular confirmation process should be the occasion for such a debate. Did Dionne call for a debate over abortion, or a debate over any substantive constitutional issue, in connection with the nomination of Ruth Bader Ginsburg or Stephen Breyer? If not, then he is a hypocrite in calling for one now. The standard conservative position has been that a nominee should be confirmed if he or she is well qualified to serve. Some conservatives accept the proviso that, in addition, the nominee should not hold extremist positions. Since Dionne admits that there is nothing extreme about believing that Roe v. Wade was incorrectly decided, it’s difficult to see why the merits of that decision, or Alito’s 1985 statements on the subject, are relevant to his confirmation.
Dionne takes Alito to task for “distancing himself” from what he wrote in 1985. He bases his argument on what Senator Feinstein says Alito told him about the memo. Experience teaches that we ought not put much stock in the reports of liberal Democratic Senators regarding what a conservative nominee has told them in private. Dionne also relies on the statement of Steve Schmitt, who is managing the Alito confirmation for the White House, that the 1985 memo doesn’t tell us whether Alito today would vote to overturn Roe. That statement is true, and therefore unobjectionable. At his confirmation hearing, Alito of course should acknowledge that his statments in the 1985 memo reflect the views he held at the time. However, he’s under no obligation to say more, and he would be foolish to go any further than Ginsburg and Roberts did when it comes to discussing positions on specific constitutional issues.
I have no objection to a “national debate” about Roe, or about constitutional interpretation generally. But there’s no reason why the debate has to take place in the context of a confirmation battle over a conservative nominee. And there are several reasons why it shouldn’t. For one thing, as I explained above, the outcome of the debate is not relevant, under traditional understandings of the confirmation process, to whether Alito should be confirmed. To participate in the debate Dionne wants would be to imply otherwise. In addition, as we saw during the Roberts hearings, many of the Senators who would dominate the debate are incapable of intelligently discussing the issues involved.
Dionne surely understands all of this, and it’s doubtful that his column is motivated by a good faith desire to have Senators Biden and Graham play Douglas and Lincoln. More likely, Dionne just wants to take a cheap shot at Alito and the administration, and perhaps goad them into an approach that will reduce the likelihood of Alito’s confirmation.