Here is the Republican fact sheet on Sen. Dick Durbin’s (D.-Ill.) questioning of Judge Alito this morning. Durbin, as I wrote about earlier today, wasted no time to launch his attacks on Alito about his abortion views and his ruling in a coal mining case.
Yesterday, Judge Alito Repeatedly Answered Senators’ Questions Regarding Abortion And Privacy, Consistent With His Oath As A Judge, And Consistent With The Ethical Obligations That Would Be Incumbent Upon Him As A Supreme Court Justice.
Chairman Specter Noted That Judge Alito Had Answered More Questions Than Recent Nominees. Even Senator Biden Noted That Alito Had Been Forthcoming. Indeed, Judge Alito Answered A Higher Percentage (95%) Of Questions On His Opening Day Of Questioning Than Justices John Roberts (89%) Or Ruth Bader Ginsburg (79%) Did During Their Full Confirmation Hearings.
In Response To Senator Schumer, Judge Alito Explained How He Would Approach Such An Issue As A Justice. He Said Clearly: "Today, If The Issue [Of Abortion] Were To Come Before Me…The First Question Would Be…The Issue Of Stare Decisis. And If The Analysis Were To Get Beyond That Point, Then I Would Approach The Question With An Open Mind And I Would Listen To The Arguments That Were Made.
• Expanding On His Answer, Judge Alito Discussed His Views On Stare Decisis: [T]He Doctrine Of Stare Decisis Is A Very Important Doctrine. It’s A Fundamental Part Of Our Legal System.
As A Federal Judge, Alito Is Prohibited By Article II Of The Federal Constitution From Issuing Advisory Opinions About Hypothetical Cases. Moreover, The Ethical Cannons Require Justices To Consider The Impartiality, And The Appearance Of Impartiality, Of The Judiciary. Therefore, As Every Recent Nominee Has Recognized, It Is Improper To Answer Specific Questions About Issues That Might Come Before The Court.
• Ginsburg Refused To Disclose Her Personal View On Reproductive Choice. “[I] Would Not Like To Answer That Question Any More Than I Would Like To Answer The Question Of What Choice I Would Make For Myself, What Reproductive Choice I Would Make For Myself. It’s Not Relevant To What I Would Decide As A Judge.” (Judge Ruth Bader Ginsburg, Committee On The Judiciary, U.S. Senate, Hearing, 7/21/93)
• Ginsburg: “I Am Again Feeling In The Position Of A [Skier] At The Top Of That Hill Because You Were Asking Me How I Would Have Voted In Rust V. Sullivan. … I Think I Have To Not Descend That Slope Because Once You Ask Me About This Question, This Case, Then You Will Ask Me About Another Case That’s Over And Done And Another Case. So I Think That I Have To Draw The Line At The Cases I Have Decided.” (Judge Ruth Bader Ginsburg, Committee On The Judiciary, U.S. Senate, Hearing, 7/22/93)
Sago Mining Tragedy
• In The Case Mentioned By Senator Durbin, Judge Alito Dissented From A Decision Upholding The Determination Of The Federal Mine Safety And Health Review Commission That A Facility Used Solely For The Loading Of Coal For Transport Was A "Mine" Within The Context Of The Federal Mine Safety And Health Act.
• Judge Alito Has Approached Each Case As The Law And The Facts Required. For Example, In Cort V. Director, Office Of Workers’ Compensation Programs, 996 F.2d 1549 (3d Cir. 1993), Judge Alito Reversed A Ruling Of The Department Of Labor’s Benefit Review Board, And Ordered Entry Of Judgment In Favor Of A Coal Miner Petitioning Under The Black Lung Benefits Act.