This is a partial transcript of "Special Report With Brit Hume" from Oct. 31, 2005, that has been edited for clarity.
BRIT HUME, HOST: The National Women’s Law Center says Samuel Alito's (search) nomination, "Threatens the very existence of core legal rights." People for the American Way writes Alito is "hostile to basic reproductive privacy rights." And Planned Parenthood (search) says Alito’s confirmation would, "create" — would create, "a direct threat to the health and safety of American women."
So, who is this man who stirs such feelings on the left? For answers, we turn to professor Douglas Kmiec of the Pepperdine University Law School. He joins us from Los Angeles.
DOUGLAS KMIEC, PEPPERDINE UNIVERSITY: Thank you, Brit.
HUME: I know you know this man. How do you know him, and what can you tell us just what he is like?
KMIEC: Well, Sam Alito and I worked side by side for a number of years in the Department of Justice (search), office of legal counsel for President Reagan. He is a very likable man. I can say without an exception that he was well liked by presidential appointees and civil service lawyers and staff throughout the office. And they respected him both for his kindness, his gentleness, the fact that he’s the kind of person, Brit, that if you had a personal problem or a professional one, you know you would get his complete attention, and that he would lay out for you a number of very fine alternatives — in essence, provide you with good counsel. He is a very reliable, solid citizen.
HUME: So what about his judicial philosophy? I mean, we are given to believe he is a judicial conservative. He has himself spoke of the limited role that courts serve, appropriately play in our judicial system. Can you expound on that from your knowledge of him?
KMIEC: Well, you know, that’s really it. Without a doubt. And in fact, my experience with him in the office of legal counsel, that office is very judicial, it’s writing opinions, giving direction to the executive branch on all sorts of questions under the U.S. code.
Sam’s question always is, what did the law provide, what did Congress intend to accomplish, what does the constitutional provision and its history instruct for us here? He was not someone who would give an impulsive answer or a quick answer. He was someone given to extended study.
And so, he’s not a movement conservative. He’s not an ideologue. But movement conservatives have nothing to fear from Sam Alito, because if they bring their case to the people and the people enact a conservative policy into law, the one thing that they can count on Sam Alito to do is not to get in the way of democracy, to vindicate democracy as it was intended under the Constitution, to enforce individual rights as they are protected as well. Sam Alito has a number of cases in the Third Circuit vindicating freedom of religion, freedom of speech, and all in a very common sense way.
HUME: Let’s talk about what kind of witness he might make. Obviously, he has a difficult act to follow, not so much in Harriet Miers (search), who obviously didn’t wow anybody in her personal appearances on Capitol Hill, but of course she never testified, but in now Chief Justice Roberts (search), who dazzled everybody. How is Alito likely to do against that standard?
KMIEC: Well, I think he’s going to do very well. You know, Sam Alito in some ways has deeper experience than John Roberts does. He has 15 years of experience on the federal appellate bench, over 300 opinions. He has the similar experience in terms of being an advocate before the Supreme Court, but he also had the major responsibility of prosecuting organized crime and other major drug crimes as a U.S. attorney for New Jersey.
So this is a person of considerable substance, and that substance will come across in the answers that he gives.
And you know, when you really come down to it, the only argument that anybody has against him is that they don’t like his one opinion in this abortion question. And that opinion is getting so over inflated, that someone ought to sit down and actually read it.
Pennsylvania had provided for spousal notice, on the theory that this is a tragic choice that a woman confronts, and there would be more likely to be regretting if she lost the support of her husband and didn’t have the opportunity to discuss it. The notice provision was not one that was a veto, wasn’t one that was permission. And in fact, there were multiple exceptions to it. If the spouse was an abusive spouse, if the spouse couldn’t be found, all of those excused the notice requirement.
All Sam Alito did in that case is what he will do in every case, and that is read the law for what it says. If it is compatible with the Constitution (search), he will allow the will of the people to decide. That is what the president wants from the standpoint of a judge who has constitutional structure.
HUME: Got you. Let me get you quickly to the question of whether — we only have about 30 seconds left — whether he would, in your judgment, be a reliable vote to overturn Roe versus Wade (search)?
KMIEC: I don’t think he’s going to come, like John Roberts didn’t come, with a prejudgment on that score. I think he does respect precedent, and he is going to ask whether it’s stable, whether it’s workable, whether it’s practical. But he’s also going to observe that there is a balance here. The balance between the woman’s liberty interests and the right of the unborn child, and the state, to protect life.
HUME: Douglas Kmiec, always good to have you. Thank you very much, sir.
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