- The Washington Times - Thursday, January 12, 2006

Judge Samuel Alito has been more forthright on substantive legal issues in his confirmation hearings than just about any reasonable person could have expected him to be. In several cases, he has given much more than is required by the so-called “Ginsburg standard” (Justice Ruth Bader Ginsburg’s 1993 pledge against forecasts and hints on issues that might come before the court) meaning that Democrats who vote against him saying otherwise are simply being disingenuous.

The clearest and most telling example was Judge Alito’s statement on the contentious issue of whether the Constitution protects the right to privacy. He said it did — a clear stance on a contentious issue which is all but certain to come before the court in a wide range of cases.

The second clear example was Judge Alito’s unmistakable rejection of foreign law to interpret the Constitution, which commits him to one side of an ongoing issue. “I don’t think it’s appropriate or useful to look to foreign law in interpreting the provisions of our Constitution,” he told Sen. Tom Coburn, Oklahoma Republican, on Wednesday. That commitment happens to fly in the face of Justice Anthony Kennedy’s majority opinion in last year’s Roper v. Simmons ruling which cited international law as a reason to abolish the death penalty for juveniles. It will come up again and again in the next few years.

A third example was Judge Alito’s statement on the Foreign Intelligence Surveillance Act. Prompted by Sen. Dianne Feinstein, California Democrat, on Thursday morning, the judge outlined the limits of executive authority in ways he could have declined to under the “Ginsburg standard.” This contentious subject is almost certain to come before the court in the near future.

Just how forthright was Judge Alito? He was probably the most forthright nominee in recent memory with the exception of Robert Bork. By our reckoning, he was more forthcoming than Justices Ginsburg and Stephen Breyer and indisputedly more so than Chief Justice John Roberts.

Sen. John Cornyn, Texas Republican, attempted to illustrate this on Wednesday with a clunky question-and-answer chart whose numbers are certainly too generous to everyone involved: Mr. Cornyn credited Judge Alito with a 98 percent “answer” rate to the senators’ questions, as compared to an 80 percent rate for Justice Ginsburg. Anyone watching the cat-and-mouse game of confirmation hearings knows these numbers are too high.

But for comparison’s sake, the inflated numbers are meaningful and telling. Through Wednesday night, by the staffers’ reckoning, Judge Alito had answered 533 of 546 questions — many more than Justice Ginsburg in 1993 (307 of 384 questions), Justice Breyer in 1994 (291 of 355 questions) and Chief Justice John Roberts in September.

At the very least, it is clear Judge Alito exceeded the so-called “Ginsburg standard” by speaking substantively on a number of subjects likely to come before the court. Judge Alito might be opposed by Democrats for sheer partisan reasons or because they fear his views on abortion are more conservative than theirs. But they cannot honestly oppose him for his supposed opacity. Judge Alito spoke much too candidly for that.

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