Except that the sentence quoted by The Times prior is:

"It has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan's administration and to help to advance legal positions in which I personally believe very strongly."

That's a good point. I should give more context.

It will be interested to watch whether Democrats will attempt to torpedo a smart, well-credentialed, and decent man because they don't like his reasoned positions. Never mind that he's smarter than all of the Senators who will be asking him questions ...

A (no doubt) Bush-ite touting intellect as important for national leaders. That's rich.

The substantive question now is, given Alito's stated view, how might he rule when faced with the precedents of the Roe and Casey cases. He won't say.

But the political issues may prevail in shaping the debate. The obvious TV ad will read:

"I personally believe very strongly," Judge Alito said, "... that the Constitution does not protect a right to an abortion."

I don't see why it would ever be appropriate to say there's a Constitutional right to an abortion up to the time of birth. Presumably if there ever was a reason to take the fetus at that late date it would be more reasonable (that is, less of a medical risk) to have a C-section. That's what Roe v. Wade is about--measuring risk to mother vs. risk to the developing fetus. There appears to be a "right" to a first-trimester abortion because the given risks of pregnancy are greater than the given risks of legal & regulated abortion.

Alito isn't say anything threatening to the fundamental architecture of the Roe v. Wade decision.

The "recent cases" Alito refers to are brief filed in the Thornburgh and Wygant cases. In Thornburgh, the Solicitor General argued that Roe should be overturned, claiming:

"Indeed, the textual, doctrinal and historical basis for Roe v. Wade is so far flawed, and, as these cases illustrate, is a source of such instability in the law that this Court should reconsider that decision and on reconsideration abandon it."

In Wygant, the Solicitor General argued against protecting minority teachers during layoffs. The court agreed with the Solicitor General's position, but luckly ignored the inflammatory rhetoric in the brief.

Much more at:

http://www.slingshot.org/2005/11/03/alitos-documents/

pro-lifers, once mother has the baby are you gonna be there to help out changing diapers, feeding it, clothing it, sending it to school, paying for its doctor bills, paying for its college education, etc.? just as the argument can be made that abortion doctors only care about getting the women in their office to abort the baby and make some $$$$ than they dont care about em; the same can be reversed and said for pro-lifers. plus who knows what a mother who doesn't want to have a baby in the first place will do to her body when she is pregnant, ie. smoke, drink, drugs, etc.

god is only a figment of your imagination!

Why do you assume that Alito is smarter than all of the senators who will be questioning him? Many of the senators have just as impressive backgrounds. Are you privy to some sort of IQ test results?

I still contend, as many other conservatives do, that regardless of where one stands on the issue of abortion, Roe v. Wade was decided using a lack of sound reasoning, and an overabundance of typically misplaced liberal expansionism.
I may not like many of the decisions arrived at by the SC, but as long as I believe that proper thought process was used in gaining that decision, and it is consistent with the Constitution, I may just have to live with it.
Why don't liberals adhere to the same?

kevin, under your (and alot of conservatives) reasoning can't the same be said for the supreme courts, to quote you, "lack of sound reasoning, and an overabundance of typically misplaced liberal expansionism" when it came to their decision regarding segregation. since that wasn't directly addressed either? anyways dont worry b/c when you arrive in heaven you'll get to see all those aborted babies anyway. oh wait, heaven, hell, god don't exist and religion is nothing but bunk myth and bs!!

Kevin:

I've clashed with you on here before on this issue, but Roe was decided with sound reasoning and is consistent with the constitution and constitutional jurisprudence. You just disagree with its conclusion. That's fine, and you should continue to argue how the case was wrongly decided based on constitutional arguments. But you're not advancing any argument when you just argue that is lacked sound reasoning and was based on "an overabundance of typically misplaced liberal expansionism."

More analysis at: http://agendagap.blogspot.com

MJ:

Roe is a joke with no basis in the Constitution (and I agree with Griswold).

Roe presumed to decide the humanity of the defenseless and voiceless and chose to err on the side of the powerful. Like Dred Scott, it tried to settle a hot political dispute once-and for all, and only made it immeasurably hotter. Like Plessy, it has been reaffirmed and tweaked many times, but it will be over-ruled someday and no one will defend it thereafter.

Oh, the talking points once again. No basis in the Constitution? Then why did seven justices sign on to it? Have you read Eisenstadt, Griswold, Meyer, Pierce, Loving, Skinner, and Prince? Better yet, have you read Roe?

Roe will not be overturned, and people will defend it for the rest of our lives.

Yes, I've read all those (and agree with all but Roe). I'm a lawyer, went to a top-ten law school, clerked on a Circuit Ct. App.

Roe is one of the four worst decisions in the history of the Supreme Court (the two I mentioned plus Korematsu). I don't know if that's a "talking point," but I think it is true. It has been deeply harmful for the reputation of the Supreme Court and the functioning of our democracy. It has led to the politicization of these nominations in a very unhealthy way. Can't say enough bad things about it.

Well, we have a similar background, and I disagree with you. I think what has been harmful to the reputation of the Supreme Court is the conservative demagoguery of Roe and the judiciary in general. If responsible parties would educate the public on the inevitably complex and philophical nature of constitutional interpretation -- rather than throw out phrases like "strictly interpret," "plain reading," "activist," and "legislate from the bench" -- then I think we could have a healthy debate on this issue. There are some great arguments against Roe, but instead we hear statements like "abortion isn't mentioned in the constitution." Dumb arguments like these are the product of demogoguery, not Roe itself.

So MJ, the question that you and other intellectual liberals (as opposed to Mr. Remmington) must answer is this: since there are "great arguments against Roe" should opposition to Roe be disqualifying for a SCOTUS nominee?

"So MJ, the question that you and other intellectual liberals (as opposed to Mr. Remmington) must answer is this: since there are "great arguments against Roe" should opposition to Roe be disqualifying for a SCOTUS nominee?"

I should clarify my position, in case it isn't clear -- when I say there are some great arguments against Roe, I mean that, as a lawyer, I could make several compelling and well-supported arguments that abortion is not protected by the Constitution. However, I do think these arguments are wrong. (This is partly what bothers me about the anti-Roe crowd here -- their suggestion that Roe is a "joke" implies that a lawyer making arguments in support of Roe would be subject to Rule 11 sanctions, and that there is absolutely no support for the holding in Roe. I find these claims ludicrous.)

Now, your question raises the different issue of what a senator's role should be in advising and consenting on a nominee. To what extent should judicial philosophy or ideology come into play. Not suprisingly, there is a real difference of opinion on this issue. For me, opposition to Roe should not be a disqualification at all. I'm much more concerned with qualifications and with gaining an appreciation that the judge grasps the complications and scope of constitutional interpretation. I've seen no reason not to view Alito as eminently qualified on this score. (I'm actually fairly moderate and clerked for a conservative court of appeals judge.)

MJ-

Surely you must know that just because seven justices sign on to an opinion does not make it a sound decision, nor does it mean that a decision can't be properly criticized in the very harsh terms you disliked. Your seven cases at best show Roe's consistency with the Supreme Court's jurisprudence, which itself is not beyond criticism. I do not think they show any link between Roe and the actual constitution (in spite of how much our Con Law professors love them). Did it ever occur to you that maybe those cases were not well grounded in the Constitution? You could respond that just because a judge dissents does not mean that a case is wrong, but given that there is a history of judicial resistance to finding all these extratextual rights, don't you think it's reasonable to conclude as many of the dissents do in those cases (e.g., Stewart's and Black's in Griswold) that such findings have no basis in the Constitution?

To determine whether Roe has in fact any basis in the Constitution we must ask under what provision(s) is abortion protected. To say that a judge in the X case says so because it's so important or so fundamental alone will not do. You can say that constitutional interpretation has an "inevitably complex and philophical nature" all you like but in the end you have to show the link to the actual Constitution, or else you can never expect Roe to be beyond the harsh criticism it deserves.

I believe that Roe adequately shows that link to the Constitution and to precedent: the "liberty" clause of the Fourteenth Amendment.

And yes, seven justices do not make the decision sound. But it is a stretch to then argue that the decision has "no basis."

The extratextual ship sailed a long time ago, if by this you mean the Court recognizing rights that are not specifically enumerated in the Constitution. Almost all of our constitutionally protected rights are not specifically enumerated -- they're cabined in one of the general clauses included in the Constitution by the founding fathers. You can criticize all of these rights if you'd like -- rights like the right to refuse medical treatment, to send one's children to private as opposed to public school, to travel between states, to work, to procreate, to use contraception, etc. -- but then you wouldn't be a judge; you'd be a constitutional commentator (and a bad one at that).

MJ-

The "liberty" clause of the Fourteenth Amendment only tells you what can't be deprived if procedures are not followed. It's a fair question as to what procedures are due to enforce a given deprivation of life, liberty, or property, but the precedents which pretend to find substantive rights where none are expressed have often proved to be an embarrassment to the Supreme Court's jurisprudence.

Why am I a bad constitutional commentator merely because I say that the rights you speak of are simply nowhere to be found in the Constitution (possible exception for interstate travel--I think that one might actually be in there, but I could be wrong)? It so happens that I do indeed like the particular rights that you mentioned, but that does not mean they must therefore be in the Constitution. Those rights are secured by judicial inventions, and there is no reason to believe that any provision was originally understood to cabin them. The only way you can make them link to the text is by seeking out generality and abstraction and exploiting it to say something it was not meant to say, but that would be intellectually dishonest. Do you really think the measure of an approach to constitutional interpretation is whether it allows us to find the principles we like in it?

I am not seeking out generality and abstraction; it is there. And I fully believe that the founding fathers put such generality and abstraction there on purpose (which I think is reinforced by the Ninth Amendment). The rights that are found to exist within these generalities and abstractions are cabined by these very generalities and abstractions -- and by the process: the President nominating a Justice who (i) is confirmed by a majority of senators and (ii) can convince four other such justices that his or position is the correct one. This is why the nominating and confirming process is extremely important to the constitutional scheme. You seem to lack faith in this process and scheme. I think it has been remarkably successful.

I probably exaggerate when I say you'd be a bad constitutional commentator. I just think textualist approaches to interpretation, whether it be the constitution, the bible, or any other piece of literature, are wrongheaded.

MJ-

The Supreme Court was understood by the founders to be a legal institution as opposed to a political institution like the Senate or the Presidency. That the nomination process has become such a vortex of high political drama drawing the attention of every political interest is an unfortunate product of the failure to maintain the distinction. It was a controversial matter for the founders that there might even be judicial review of federal statutes at all, but even if we accept that judicial review was to be included in the Supreme Court's function (I am satisfied that the text provides for such review), it is simply beyond reason to say that the founders had the purpose of having the Supreme Court take provisions like the due process clause and find substantive rights in everything from slavery to sodomy.

If we decide that we like this political football game called the nomination process, and we really want the Supreme Court to continue fighting to see who's political values can be read into the text then why have a Supreme Court at all? Why not just vest the judicial power in the Senate where the decision makers are at least remotely accountable to the people? Or maybe we could have national elections for the Supreme Court complete with candidates who will promise that we can all have our cake and sodomy too. But the founders saw the value of a independent legal institution, and I hope that can be maintained.

When someone asserts a right other than one included in the federal Constitution, e.g., state constitutional rights or federal statutory rights, the Ninth Amendment takes away the argument that since the asserted right was not included in the federal constitution, the right was intended to be excluded or otherwise made insecure. The Ninth Amendment was only included to counter that argument, it is not an invitation for judges to exploit textual uncertainty in order to invent new principles. Judges who want to be unrestricted and creative in constitutional interpretation should take up literature instead.