The analysis of Supreme Court confirmation hearings has become the post-Cold War equivalent of Kremlinology, the study of Soviet behavior relying on exquisitely subtle clues to draw grand conclusions about the future: Is that Chernenko standing next to Brezhnev at the May Day parade? Is Andropov wearing a fedora?
So in the confirmation hearings of Judge Sam Alito, commentators carefully parsed the phrase "unitary executive" that he used in a single speech five years ago. They alighted when Alito described the "one-person/one-vote" principle as "settled law" but described Roe v. Wade as a "precedent entitled to respect." Did this signal he would vote to overrule Roe?
All this speculation arises because nominees have learned that the way to get on the Supreme Court is to say nothing and to say it in as moderate and monotone a manner as possible.
Over more than two days of testimony before the Senate Judiciary Committee Alito said almost nothing. When asked about this or that precedent, his stock response was to describe the holding of the Court, say it was entitled to respect, and then say he could say no more because the issue might come before him.
This convention of obscurantism in the Supreme Court nomination process puzzles me. I don't see why a nominee can't express a general view about a precedent or doctrine (without promising how to vote) when it's perfectly acceptable for a sitting justice to announce in one opinion that he supports (or opposes) a precedent and then to decide future cases related to the same precedent.
Notwithstanding the deliberate opacity of the confirmation process, is there anything about Alito that should give gay Americans concern?
The national gay groups all oppose Alito, and did so even before his confirmation hearings. But they have pretty much taken themselves out of any serious debate about President Bush's judicial nominees. Their position is basically this: "We have a specific pro-gay agenda, which we understand to include the right to abortion without restrictions. We want to advance this agenda, to the extent possible, through the courts. We oppose any nominee for whom there is no affirmative evidence that he fully supports our agenda and is willing to advance it judicially."
Since no Republican judicial nominee is going to meet this test, national gay groups might as well announce that they will oppose any and all judicial nominees for the remainder of the Bush presidency and be done with the matter. Their opposition will be ineffectual, as it has been on all of Bush's nominees. But at least we could dispense with the charade that they actually care about, and have "analyzed," an individual nominee's record.
The best that the Lambda Legal Defense and Education Fund could do to muster a case against Alito was to point out that he is a conservative, that he thinks there were excesses of judicial activism in the 1960s on matters like criminal defendants' rights, that he opposed Roe in 1985, that he has a "strong allegiance to 'free enterprise'" (quel horreur!), that he interprets certain employment-discrimination laws more narrowly than Lambda would, and that he would not always remove the displays of menorahs and creches from public land.
Where was the gay-rights issue in that litany?
I see nothing either very promising or very threatening in Alito's record when it comes to gay issues. That's not to say he couldn't turn out to be an imitation of Justice Antonin Scalia on gay rights. That would be terrible: Scalia has been actively hostile and even disparaging on the subject. But Alito could also turn out to be surprisingly receptive to certain gay-rights claims, as Reagan-appointee Justice Anthony Kennedy has been.
At his hearing, Alito announced that he supports the constitutional right to privacy that is the underpinning for the Supreme Court's decision in Lawrence v. Texas striking down anti-gay sodomy laws. He further suggested that he believes this right extends to unmarried people. He was not asked to comment beyond that.
While he supports federalism and "limited government" -- more right-wing ideas Lambda finds troubling -- Alito told the Senate that he could not think of any reason why Congress could not pass a law protecting gays from employment discrimination.
There's more. Alito appears to be very strong on free speech, which has been critical to the gay-rights cause. As a federal appellate judge, he supported the transfer of a gay student to another school to escape harassment. After the hearing, even The Task Force (NGLTF) observed that Alito "registered immediate, palpable and sincere horror and disgust" at the anti-gay statements attributed to an alumni group of which he had once been a member.
Alito is not going to bring us gay marriage, but neither is anybody else on this Court. He will probably not vote to strike down the military's exclusion of homosexuals – also probably a strong majority view on the current Court. He will defer to Congress and to the states, to a very large extent, on what public policy toward gays ought to be.
That is, reading between the lines of his testimony and making predictions about his future conduct as compared to what his predecessor's might have been on specifically gay issues likely to come before the Court, Alito's appointment probably leaves us about where we were before.
Dale Carpenter is a law professor. He can be reached at OutRight@metroweekly.com.