The White House and Mr. Specter hastily arranged the visit after an uproar over Wednesday's release of a 1985 memorandum reflecting Judge Alito's passionate belief that Roe v. Wade, the Supreme Court's landmark abortion decision, should be overturned....And the NYT has this editorial, expressing a lot of skepticism but stopping short of rejecting the nomination. Its bottom line is the same as Specter's: "The Senate needs to look through the cloud of explanations and excuses and examine where Judge Alito really stands on abortion rights." That is, we know with some assurance what he thinks of abortion. The question for a judge is what he thinks about rights.
"Well, Judge Alito characterizes it as a personal opinion," Mr. Specter said. "I don't. That's what Judge Alito says."...
[A] colleague of Judge Alito, Judge Edward R. Becker of the Third Circuit, who is also a close friend of Mr. Specter, said Friday that the memorandum did not reflect Judge Alito's approach on the bench, which he said was to look "at every case anew with an open mind."
"It is not the Sam Alito I know," Judge Becker said. "People don't understand what happens to you when you become a judge. When you take that oath, you are transformed. You are a different person. You have a solemn obligation to be totally impartial and fair."
Mr. Specter said that was the point Judge Alito made in their meeting.
He said the judge "raised a sharp distinction, as he put it, between his role as an advocate and his role as a judge," adding, "And with respect to his personal views on a woman's right to choose, he says that is not a matter to be considered in deliberation on a constitutional issue of a woman's right to choose, the judicial role is entirely different."
Judge Becker says, "People don't understand what happens to you when you become a judge. When you take that oath, you are transformed." Well, people quite rightly don't "understand" that you become "transformed" into some inhuman machine that can generate purely legal reasoning. Efforts to convince us that you undergo a complete transformation fail because we are not dupes. We've trained ourselves not to believe assurances about the pure motives of those who would take power. But some transformation must take place, if we are talking about a human being who has enough moral character to be considered for the position in the first place. We also go wrong if we imagine that judging is nothing but repackaged politics.
Still, if we know a judge's attitudes will surely, if subtly, affect decisions, we've got to worry when the nominee has clearly expressed personal hostility to a right we care about. The fight to deprive women of the control over the insides of their own bodies has gone on too long already. Now, we are threatened with a new surge of legal attacks, as a newly configured Court revives the hopes of the opponents of abortion rights. I've supported the Alito nomination because I recognize the significance of the President's appointment power and because Alito is clearly an accomplished man of excellent character. But I do think he needs to demonstrate a commitment to the structure of constitutional rights that we have counted on for so many years.
UPDATE: Let me add a word about the fact that Alito has taken various positions as a legal advocate and not simply as a private individual. Aren't his ideas about abortion, expressed in legal writing, as an advocate, something that relate to abortion rights and not simply to abortion? An advocate has a goal in mind and, in pursuit of this goal, searches for legal arguments that might persuade a court. What an advocate does with legal texts and arguments is different from what a judge does. Advocates don't really think their arguments are the best answers, just that they are professionally arguable and would produce the desired results. If you asked the advocate to be honest and say what he would decide if he were the judge, assuming this advocate was honest and ethical, he would often admit that he would reject his own argument. Thus, Alito can properly distinguish the arguments he supported as an advocate with the goal of overturning abortion rights from the opinions he would reach as a judge.