Alito and the Right to Privacy, Part 2

Transcript of Arlen Specter's statements regarding Samuel Alito and a Constitutitonal right to privacy

Monday, Oct. 31

SPECTER:

I met for about an hour and a quarter this morning with Judge Samuel Alito, whom I have known for the better part of two decades. We talked about a wide variety of issues which will come before the Judiciary Committee during his hearings.

I start with his statement that he believes there is a RIGHT TO PRIVACY Under the LIBERTY CLAUSE of the United States Constitution. And he believes that the right applied to singles as well as married under the interpretation of Griswold v. Connecticut. And he says that he accepts Griswold v. Connecticut as GOOD LAW.

We talked a considerable extent about the value of precedence or stare decisis, to let the decision stand, which is a key factor, as you all know, on evaluating Roe.

I raised with him a question about super precedents, which we took up in the hearings for Judge Roberts -- Chief Justice Roberts -- and the super-duper precedents which I added in on the basis of some 38 cases where the Supreme Court has had an opportunity to overrule Roe and has not done so.

There was an interesting article in the New York Times yesterday about where super precedents are going and super-duper precedents are going, and Judge Alito did not endorse super precedents or super-duper precedents, but did say that he viewed it as a sliding scale, and that the longer a decision was in effect and the more times that it had been reaffirmed by different courts, different justices appointed by different presidents, it had extra precedential value.

[EDIT]

SPECTER: And I think he is entitled to an opportunity to be heard and not to have people condemn or criticize when there's obviously an insufficient basis for doing so.

He has the dissent in the Court of Appeals for the 3rd Circuit on Casey v. Planned Parenthood, on the NARROW grounds already publicized, upholding the Pennsylvania legislative determination to require notice to a husband -- a very NARROW ruling, VERY CAREFULLY CRAFTED on the basis of Justice O'Connor's decisions in previous cases about what would constitute an undue burden for the woman.

He joined in a decision striking down a partial birth abortion statute from New Jersey. That was in the context where it had been decided by the Supreme Court, but that was his decision.

[ EDIT ]

QUESTION: How central will the dissenting opinion in the Casey case be in the decision-making process going forward? And do you think his opinions on abortion are clear at this point, as some groups are suggesting?

SPECTER: How important will his dissent in Casey will be?

I think it will be a factor. His dissent in Casey does not signify disagreement with Roe v. Wade. The joint opinion by the Supreme Court of the United States in Casey upheld Roe but permitted certain limitations on parental notification, on a waiting period.

SPECTER: And this was one of quite a number of limitations which the Pennsylvania legislature had imposed, but still consistent with upholding Roe v. Wade. So there's nothing in his dissent which suggests disagreement with the underlying decision in Roe v. Wade. But I'm sure it'll be a subject of discussion at the hearings.

[ EDIT ]

QUESTION: How did Judge Alito's comments about super precedents and super-duper precedents differ from Judge Roberts'?

SPECTER: Well, Judge Alito said a little more than Judge Roberts said. But, then, Judge Roberts ducked super precedents and he ducked super-duper precedents.

And in the informal meeting I had with him, I asked him a pop quiz. I said: In how many cases do you think the Supreme Court has had a chance to overrule Roe v. Wade?

And he guessed something in the teens. And he was surprised to hear that there were 38. But that was one of many questions which Chief Justice Roberts successfully declined to answer.

QUESTION: Well, may I ask it this way, then: With your conversation with Judge Alito today, would you say he was far off or close to where Judge Roberts ended up on the super and super-duper precedent question asked in the hearing?

SPECTER: (inaudible) if you want to rephrase the question to Chief Justice Roberts (inaudible) gotten an answer and I'll give you an answer.

I think he went farther than Roberts went when he said that -- he used the term "sliding scale" and said that when a case has been reaffirmed many times, it has extra -- I think he said "weight" -- as a precedent, reaffirmed by different courts, nominees appointed by different presidents.

[EDIT]

QUESTION: You discussed Griswold. Did you also discuss Lawrence v. Texas, and the precedential value of Lawrence v. Texas?

SPECTER: I didn't take up that case specifically. We met, as I said, for about an hour and a quarter and didn't take up all the questions I'll have to ask him.

QUESTION: You discussed Griswold. Did you discuss Eisenstadt with him as well? And do you see any possibility of getting a confirmation hearing in December?

SPECTER: I discussed the issue of the contraceptive issue applying singles, as well as marriage in Griswold. And Eisenstadt was not specifically mentioned, but the subject matter was.