Alito makes the case against himself

The nominee says litigants have the right to a judge who hasn't decided their case in advance.

Published January 11, 2006 8:47PM (EST)

We couldn't have said it better ourselves.

Defending his refusal to offer his current view on Roe v. Wade, Samuel Alito just said that litigants who bring the issue of abortion before the Supreme Court in the future have "a right" to have their case heard by justices with open minds, "and that means people who haven't announced in advance what they think about the issue."

The problem, of course, is that Alito has already "announced in advance" what he thinks about the issue. In his 1985 application for a political appointment in the Justice Department, Alito suggested that he "personally" believed "very strongly" in the positions he had advanced in the Solicitor General's Office -- in particular, the argument that the "Constitution does not protect a right to an abortion."

Alito won't say whether he still believes what he believed in 1985 because, he says, it would be the "antithesis" of a fair legal system if judges told litigants that they'd made up their minds before a case is even heard. But isn't it equally antithetical if the judge has already made up his mind but pretends that he hasn't?

By Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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