Cato Legal Expert Comments on Day 2 of Alito Hearings

Roger Pilon, vice president for legal affairs, founder and director of Cato’s Center for Constitutional Studies, has the following thoughts on day 2 of the Alito hearings:

“As was the case with then‐​Judge Roberts, Judge Alito is demonstrating a sure grasp of both the law and the thousands of cases on which he has ruled. That makes it hard for Democrats on the committee to raise serious objections to his nomination. And their efforts are made all the harder because Alito and committee Republicans recur frequently to his conception of the role of the judge — to apply the law, regardless of his own views. It’s hard to argue against that.

“Regarding the two character concerns, the Vanguard matter was an oversight, Alito said, which he went out of his way to correct; and as best he could recall, the Concerned Alumni of Princeton matter involved the university’s exclusion of ROTC, not the exclusion of minorities or women.

“On executive power, Alito said that even the president is not above the law, but that leaves open what the law is. He distinguished the president’s control over the administration (the unitary executive) from the scope of executive power. When Democrats raise cases that seem to exhibit deference to the executive branch, Republicans and Alito himself raise cases that go the other way, thereby exhibiting his impartiality. Deference to the Congress has so far played a lesser role in these hearings, but there lies a troubling issue for Democrats: their concern is rather more with executive than with congressional overreaching.

“On the rights issues, Alito has thus far confirmed his respect for the Court’s recognition of largely unobjectionable unenumerated rights, as in Griswold and Eisenstadt; but on Roe v. Wade he has simply restated the current law and stated his views on precedent. He has confirmed the importance of precedent but has committed to no more.”

Pilon held senior posts at the Department of Justice and the State Department during the Reagan administration. He and Mark Moller, editor of the Cato Supreme Court Review, are available for interviews.

“Alito and Abortion,” by Roger Pilon. The Wall Street Journal, November, 28, 2005.