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Specter 'telegraphs' blows
Letter to Alito pinpoints topics such as precedent
Wednesday, December 14, 2005

WASHINGTON -- Sen. Arlen Specter had a few choice words yesterday for Supreme Court nominee Samuel A. Alito Jr., and some of them come from the mouth of Chief Justice John G. Roberts Jr.

In a letter to Judge Alito, the Pennsylvania Republican who chairs the Senate Judiciary Committee previewed several questions he plans to pose during the nominee's confirmation hearings, which begin Jan. 9.

First and foremost, Mr. Specter, a supporter of abortion rights, focused on the doctrine of stare decisis, the legal principle that judges should defer to precedent. During Chief Justice Roberts' hearings, Mr. Specter argued that Roe v. Wade, the 1973 decision legalizing abortion, was a "super-duper precedent" deserving of special respect.

In yesterday's letter, Mr. Specter quoted at length then-Judge Roberts' testimony on that question, including these observations: "I do think it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness."

The senator's letter then asked Judge Alito:

"(1) What is your understanding of stare decisis and how it should guide a Supreme Court justice?

"(2) Do you agree with Chief Justice Roberts' view that overturning a precedent of the court causes a 'jolt' to the legal system?

"(3) Do you agree with Chief Justice [William] Rehnquist's view that cases should be upheld when they have become 'part of the national culture'? If so, how would you decide when a case has become part of the culture?"

The Specter letter also told Judge Alito to be prepared to share his views on some of the Warren court's decisions dealing with the rights of criminal suspects and to discuss his own views about the extent to which the First Amendment protects the free exercise of religion.

Mr. Specter also cited an opinion in which Judge Alito had questioned the statistical basis for assuming that racial bias explained the exclusion of prospective jurors who happened to be black. "Is statistical analysis ever a legitimate tool for evaluating the merits of a race discrimination claim?" he asked. "If so, how should it be applied and what weight should it be given?"

University of Richmond law professor Carl Tobias said Mr. Specter was doing a service to Judge Alito, the committee and the public by giving the nominee advance notice of his questions.

Yesterday, Judge Alito picked up the endorsement of the National Association of Manufacturers, which said he would "be a justice committed to interpreting the law as written, not an activist who will try to legislate from the bench."

Meanwhile, leaders of three disability-rights organizations announced that they planned to oppose Judge Alito's confirmation at a Capitol Hill news conference today. The groups are ADA Watch/National Coalition for Disability Rights, the National Council on Independent Living and the Bazelon Center for Mental Health Law.

First published on December 14, 2005 at 12:00 am
Michael McGough can be reached at 202-662-7025 or mmcgough@post-gazette.com.
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