Tribe: Alito Is Threat To Roe

Judge Samuel A. Alito, Jr. would reduce abortion rights to a “hollow shell” if he were confirmed to the Supreme Court, Harvard constitutional scholar Laurence H. Tribe ’62 told the Senate Judiciary Committee on the final day of the nominee’s hearings last week.

Tribe, the Loeb University professor at Harvard, told the panel that while Alito would be unlikely to directly overrule Roe v. Wade, the nominee would chip away at abortion rights slowly over the course of his tenure.

“With the vote of Judge Alito as Justice Alito, the court will cut back on Roe v. Wade step by step—not just to the point where, as the moderate American center has it, abortion is cautiously restricted—but to the point where the fundamental, underlying right to liberty becomes a hollow shell,” Tribe said in his testimony.

The Judiciary Committee was originally scheduled to vote on Alito’s nomination this week, but Democrats delayed a vote until next Tuesday. The full Senate is scheduled to debate Alito’s confirmation Wednesday.

In his opening remarks, Tribe said that while he would not offer a formal recommendation to the committee on Alito’s confirmation, he sought to prevent senators from voting with “their eyes wide shut.”

But after Tribe spent more than seven minutes expressing his concerns about Alito, the Senate committee’s chairman, Arlen Specter, R-Penn., asked Tribe once more whether he was really abstaining from offering a recommendation.

“I’m explaining why I am very troubled by his views,” Tribe replied. “Obviously, it follows from that that I would be hard-pressed to recommend his confirmation.”

Sitting to the right of Tribe was Charles Fried, the Beneficial professor of law at Harvard and the former solicitor general in the Reagan administration. While in that post, Fried briefly served as Alito’s boss. In his testimony, Fried said that he did not believe Alito would launch a frontal assault on Roe v. Wade. But, he twice repeated, “I could be quite wrong.”

Fried said he believed Alito would instead submit decisions that fall “in the reasonable tradition” of Planned Parenthood v. Casey, a 1992 case in which the Supreme Court struck down state laws that it said imposed an “undue burden” on women seeking abortions—including one law that required women to notify their husbands before having an abortion.

Fried also defended Alito’s writings for the solicitor general’s office, which have come under scrutiny for his remarks on abortion and the executive branch.

“The Reagan administration no doubt had a point of view about the law, just as did the FDR administration in 1933, or the JFK administration in 1961,” Fried said. “That is not unusual. That’s what elections are about.”

Fried addressed Alito’s application to serve in the solicitor general’s office, which lists a number of conservative affiliations that have riled Democrats. Fried said that “in 1985, [Alito] wanted a job in the administration, and at that point he took on a different role and he spoke in a different tone of voice.”

Fried and Tribe are not newcomers to Supreme Court hearings. In 1987, Tribe played a key role in derailing the high-court nomination of conservative Judge Robert H. Bork. And in September, Fried testified in the confirmation hearings for Chief Justice John G. Roberts, Jr ’76.

Michael Comiskey, the author of a book defending Supreme Court confirmation procedures, said that outside witnesses generally have little effect on the ultimate confirmation of nominees unless they represent groups of political interest to senators.

But, Comiskey added, the fact that Tribe and Fried hail from the same institution and disagree so sharply could create “interest and drama” in their testimony.

“They’re both well-connected, and they have lots of behind-the-scenes connections to the Washington political community,” he said.

—Staff writer Javier C. Hernandez can be reached at jhernand@fas.harvard.edu.

The Alito Hearings in Other College Papers
Full coverage in The Daily Princetonian. (Alito is a 1972 graduate of Princeton.)
Profile in the Yale Daily News. (Alito is a 1975 graduate of Yale Law School.)