I could be reaching here, but so far, I think Alito is being more candid than Roberts was during his hearings. When he was questioned about his views on abortion as expressed in 1985, Alito used the “that was then this is now” defense to distance himself from some of the statements he made. But unlike Roberts who explained away every memo he ever wrote as an expression of his client’s viewpoint, Alito acknowledged that his statement about abortion reflected his view at the time, albeit a view informed by his professional responsibility.
SPECTER: Let me come now to the statement you made in 1985 that the Constitution does not provide a basis for a woman’s right to an abortion. Do you agree with that statement today, Judge Alito?Hmmm, I’m not sure how much I trust Alito to “approach the question with an open mind,” the next time it resurfaces, but I appreciate him acknowledging a personnel opinion, outdated or otherwise.
ALITO: Well, that was a correct statement of what I thought in 1985 from my vantage point in 1985, and that was as a line attorney in the Department of Justice in the Reagan administration. Today, if the issue were to come before me, if I am fortunate enough to be confirmed and the issue were to come before me, the first question would be the question that we’ve been discussing, and that’s 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.
SPECTER: So you would approach it with an open mind notwithstanding your 1985 statement?
ALITO: Absolutely, Senator. That was a statement that I made at a prior period of time when I was performing a different role. And as I said yesterday, when someone becomes a judge, you really have to put aside the things that you did as a lawyer at prior points in your legal career and think about legal issues the way a judge thinks about legal issues.