Schumer grills Alito on free speech and abortion
Posted by Moonage on 11 Jan 2006 | Tagged as: The Legal Process
I read this transcript on PoliticalTeen, who I usually enjoy:
SCHUMER: Does the Constitution protect the right to free speech?
ALITO: Certainly it does. That€™s in the First Amendment.
SCHUMER: So why can€™t you answer the question of: Does the Constitution protect the right to an abortion the same way without talking about stare decisis, without talking about cases, et cetera?
ALITO: Because answering the question of whether the Constitution provides a right to free speech is simply responding to whether there is language in the First Amendment that says that the freedom of speech and freedom of the press can€™t be abridged. Asking about the issue of abortion has to do with the interpretation of certain provisions of the Constitution.
SCHUMER: Well, OK. I know you€™re not going to answer the question€¦
The insinuation I got from this exchange is Schumer was trying to pin Alito into making a very specific interpretation of how the Constitution approaches the subject of abortion. The logic being that since Alito had a very specific opinion on how the Constitution interprets Free Speech, he must have an equal opinion of how the Constitution approaches abortion. Alito correctly pointed out that free speech is mentioned in the Constitution, abortion is not. Schumer then railroaded the theme of "you’re not going to answer the question". This exchange justifiably makes Schumer look like an idiot. HOWEVER, several people protested PoliticalTeen as saying this was taken out of context. So, as much as I hated to do it, I decided to research this exchange to see if it was taken out of context or not since it does make Schumer look almost stupid. It wasn’t hard to do, the Washington Post has transcripts up almost as fast as they occur. Here’s the exchange without abbreviating it as PoliticalTeen did:
SCHUMER: I’m not asking about a question. I’m asking about the Constitution, in all due respect, and something you wrote about…
ALITO: The Constitution contains the due process clause of the Fifth Amendment and the 14th Amendment. It provides protection for liberty. It provides substantive protection. And the Supreme Court has told us what the standard is for determining whether something falls within the scope of those protections.
SCHUMER: Does the Constitution protect the right to free speech?
ALITO: Certainly it does. That’s in the First Amendment.
SCHUMER: So why can’t you answer the question of: Does the Constitution protect the right to an abortion the same way without talking about stare decisis, without talking about cases, et cetera?
ALITO: Because answering the question of whether the Constitution provides a right to free speech is simply responding to whether there is language in the First Amendment that says that the freedom of speech and freedom of the press can’t be abridged. Asking about the issue of abortion has to do with the interpretation of certain provisions of the Constitution.
SCHUMER: Well, OK. I know you’re not going to answer the question. I didn’t expect really that you would, although I think it would be important that you would. I think it’s part of your obligation to us that you do, particularly that you stated it once before so any idea that you’re approaching this totally fresh without any inclination or bias goes by the way side.
But I do have to tell you, Judge, you’re refusal I find troubling. And it’s sort as if I asked a friend of mine 20 years ago — a friend of mine 20 years ago said to me, he said, you know, I really can’t stand my mother-in-law. And a few weeks ago I saw him and I said, "Do you still hate your mother-in-law?"
He said, "Well, I’m now married to her daughter for 21 years, not one year."
I said, "No, no, no. Do you still hate your mother-in-law?"
And he said, "I can’t really comment."
What do you think I’d think?
ALITO: Senator, I think…
SCHUMER: Let me just move on.
You have a very nice mother-in-law. I see her right here. And she seems like a very nice person.
(LAUGHTER)
OK.
ALITO: I have not changed my opinion of my mother-in-law.
SCHUMER: Good.
What led up to that exchange is Schumer quoted an opinion Alito made in 1985 in regards to abortion rights and how it related to the Constitution. Schumer quoted part of that opinion and then tried to get Alito to unequivocally state whether or not he felt abortion was covered by the rights provided in the Constitution. Alito more than once stated he felt rights were covered by DUE PROCESS. In other words, each case presented would be judged on its own merits, abortion itself was never considered as an issue in the Constitution. Schumer then used the free speech angle to try to pin him down again. Alito once again stated each case would be judged on its own merits. Schumer then took the leap of faith that Alito would not answer his question and tossed a rhetorical strawman at Alito for chucks and giggles.
I find nothing substantially incorrect about PolticalTeen’s take on this issue. In the entirety of context the exchange was just as silly in its long version as it was in the abridged version, if not worse. Comparing free speech and abortion has no merit at all and anyone who’s read the Constitution one time would know that.
But, this is what I expected from the Alito confirmation and why I haven’t blogged too much on the issue. It’s a parade of clowns doing nothing but pandering to their constituency for a few days and a vote that will not change because of this process. It’s best left ignored. The only action that will mean anything one year from now is the vote itself.
And, as I’ve pointed out in the past, abortion is not the lightening rod issue the Democrats are hoping it is. And, as Schumer is learning right now, hammering that topic runs the only risk of making him look silly, it has no upside.
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