Why are conservatives chickening out of their big national conversation on judges?

By Dahlia Lithwick
SLATE Posted Thursday, Nov. 17, 2005, at 2:46 PM ET

Can we talk?

This week's revelation that Judge Samuel Alito is on record, as early as 1985, insisting that he "personally believes very strongly" that there is no constitutional right to abortion should have conservative pundits and thinkers jigging for joy. After all, they claim that they're dying to have this big, defining, national conversation about the role of judges; about the need to repair the damage wrought by renegade liberal activists who've been trampling all over the Constitution for decades. So, here is Sam Alito, unequivocally opening the door to that national conversation with his personal assertion that Roe is bad law.

And what are Alito's supporters, and Alito himself, doing? Backpedaling so fast, all you can see is the blur of their lost integrity.

Listen to Fox News' Brit Hume, who says: "[T]these were not personal views he was discussing, in all fairness, though were they? ... No, he has said these were the legal arguments that he made as a lawyer in the Reagan Justice Department."

Listen to Todd F. Gaziano, director of the Center for Legal and Judicial Studies at the Heritage Foundation, who says, "Alito was saying, 'You might want to know my political bona fides.' In no way does he say his political views dictate his judicial philosophy." Or listen to Alito himself, who told Dianne Feinstein: "First of all, it was different then. ... I was an advocate seeking a job. It was a political job. And that was 1985. I'm now a judge, you know. I've been on the circuit court for 15 years. And it's very different. I'm not an advocate. I don't give heed to my personal views. What I do is interpret the law." Listen to the Alito who told Ted Kennedy, D.-Mass., "that he's an older person, that he's learned more, that he thinks he's a wiser person and he has a better grasp and understanding about constitutional rights and liberties."

So, here we have a lawyer putting forth a legal opinion on a constitutional matter, and now he and his supporters seek to reduce it to the functional doctrinal equivalent of, "You simply must tell me what's in this artichoke dip."

Or listen instead to the near-deafening silence from the columnists, advocates, and politicians who only weeks ago begged the president to ditch Harriet Miers for a candidate who would boldly and lucidly articulate the arguments against liberal judicial activism, "legislating from the bench," and the results-oriented judging that brought us decisions like Roe. There is a smattering of exceptions, conservatives who have stepped forward touting the courage of their convictions. Bruce Fein is brave enough to opine that Alito couldn't and shouldn't parrot John Roberts' claim that he was merely mouthing GOP platitudes. "This idea that all the folks in the Reagan administration were all apparatchiks who didn't believe what they were saying and writing is surreal," he said. "In Alito's memos, it's clear that he wasn't writing these things because he was forced to do so. He wrote them because he believed them."

Similarly, Wendy E. Long, counsel to the Judicial Confirmation Network, has said that "Judge Alito's statement in 1985 reflects a legal view that has been widely held among judges, lawyers, and legal scholars from across the political spectrum, who have widely divergent views on the proper abortion policy." Well, good for you, Bruce and Wendy. But, um, where are the rest of you?

Might it be that your calls for this big old national bull session over activist judging are as cynical and results-based as the holding in Roe that you so revile? Could it be that the national polls—which indicate robust support for Roe and strong opposition to justices who'd reverse it—have rendered this conversation too dangerous? Or is it the prospect of the national backlash that would follow from actually reversing Roe that has rendered you speechless? Aren't you eager, finally, to defend the GOP platform, which overtly promises that the president will appoint judges who will defend the "sanctity of life" and overturn Roe? Or are your notions of scrupulous judicial purity less compelling in the cold light of political reality?

If you aren't brave enough to openly discuss the merits of Roe, can we at least chat about the role of precedent? We can limit the questioning to Judge Alito's views on stare decisis—if he is brave enough to stand by his denouncement of Roe at his hearings. That, too, is a discussion that would be welcome. But it would require candor and openness; more than a retreat to vague half assurances about "privacy" and the irreducible brilliance of the Griswold decision.

Conservatives have argued that there is a double standard at work here, that Ruth Bader Ginsburg was confirmed despite her "radical" espousal of abortion, polygamy, and other mad notions. But of course, besides the fact that so many of the claims made about Ginsburg's views are false or distorted, Ginsburg was willing to discuss her views of abortion and women's rights quite openly. Also, her views were in line with the law. What part of her confirmation hearing makes it acceptable to retreat to smoke signals when the nominee opposes Roe?

A few weeks back, I optimistically suggested that the death of the Harriet Miers nomination also spelled the death of coded speech about abortion. I asserted that the GOP base that had scuttled her confirmation would no longer accept coded messages about Roe. But here's the flip side: Movement conservatives will no longer accept coded messages about nominees and Roe, but they are not brave enough to send clear ones when it matters the most.

Dahlia Lithwick is a Slate senior editor.