Somebody asked us the other day if we believed in litmus tests for Supreme Court nominees. What we said was that we believed in honesty. If George W. Bush is nominating Supreme Court justices without regard to their views on abortion, isn't it odd that all three of his nominees so far have expressed strong antiabortion views in the past? John G. Roberts once wrote that Roe v. Wade was "wrongly decided and should be overruled." Harriet Miers once wrote that she would "actively support" a constitutional amendment outlawing abortion. And Samuel Alito once wrote that he "personally" believed "very strongly" that "the Constitution does not protect a right to an abortion."
But we're supposed to believe that the president has no litmus test on abortion? And that his nominees have "open minds" now? Please. During her confirmation hearing, Ruth Bader Ginsburg said unequivocally that she believed the Constitution guaranteed the right to an abortion, and senators were free to vote on her nomination with that fact on the table. Why couldn't Alito deal with the issue in a similarly straightforward fashion? Because 56 percent of the country wouldn't want him confirmed if it were clear that he would overturn Roe v. Wade.
So Alito never explained his views on Roe during his confirmation hearing and rebuffed some follow-up questions on the subject Friday, leaving the senators who will vote for him -- at least the ones whose political futures require some votes from the center -- free to disclaim responsibility for putting what seems like a surefire anti-Roe vote on the court.
"But he said he had no agenda!" "But he said that Roe was a precedent!" "But he said he'd have an open mind!" That's what they'll say when they discover that Justice Alito has just voted to overturn Roe. But thanks to two new shots of honesty -- one inadvertent, one not -- it just got a little harder for pro-choice Republicans Arlen Specter, Lincoln Chaffee, Olympia Snowe and Susan Collins to maintain the plausible deniability they'll need for a yes vote now and the right to outrage later.
The first came from Senate Majority Leader Bill Frist. Although Frist's office insists that Alito is a "mainstream" jurist who won't legislate from the bench, the majority leader himself offered a somewhat different characterization of the nominee while giving some Republican Party activists a private tour of the Senate Friday night. Alito, Frist told them, is the "worst nightmare of liberal Democrats."
Now, why would that be? The New York Times' editorial board fills in the blanks this morning. In an editorial calling on senators to vote down Alito's nomination, the Times says that there is "every reason to believe" that Alito "would quickly vote to overturn Roe v. Wade." The Times doesn't reach that conclusion in spite of Alito's responses during his confirmation hearings; it reaches them, at least in part, because of them. As the Times says, Alito's "long paper trail and the evasive answers he gave at his hearings" make it awfully hard to reach any other conclusion about him.
The issue is joined, even if some senators need to pretend that it isn't. Sunday was the 33rd anniversary of Roe v. Wade, and antiabortion groups will mark the date today, as they always do, by crowding the Metro and then the National Mall with themselves, their children and thousands of pictures of bloody fetuses. (At a march in Texas over the weekend, a girl who looked to be about 10 or 12 carried a sign that said, "Please don't kill me, Mommy.") They're the noisy manifestation of what's at stake in the Alito vote. Over the weekend, the Los Angeles Times called attention to the quieter one: "Taking direct aim at Roe vs. Wade," lawmakers in Indiana, Ohio, Georgia and Tennessee are proposing "broad restrictions on abortion, with the goal of forcing the U.S. Supreme Court -- once it has a second new justice -- to revisit the landmark ruling issued 33 years ago today."