In a January 12 article covering the third day of Samuel A. Alito Jr.'s Supreme Court nomination hearing, New York Times reporters Richard W. Stevenson and Neil A. Lewis ignored an example presented by Sen. Dianne Feinstein (D-CA) to Alito to highlight what she characterized as an apparent contradiction in Alito's explanation for why he would not discuss his assessment of Roe v.Wade, the Supreme Court case that legalized abortion. Feinstein noted that while Alito said that he could not give his views of Roe v. Wade because the issue might come before him, she had a “hard time” understanding why he showed no similar hesitation in affirming that the one-person, one-vote doctrine was settled law. As Feinstein noted, one-person, one-vote could also come before him on the Supreme Court because the principle is relevant to the Texas redistricting cases, which are currently before the high court. The Times made no mention of Feinstein's citation of the voting rights principle to highlight Alito's apparent contradiction, nor did the newspaper note that Alito dodged the question by talking about school desegregation.

In the January 12 article, Stevenson and Lewis summarized Alito's explanation for why, unlike one-person, one-vote or the Brown v. Board of Education ruling that banned racial segregation in public schools, he is reluctant to describe the landmark 1973 decision protecting a right to abortion as “well settled”:

In a colloquy with Senator Dianne Feinstein, Democrat of California, Judge Alito sought to explain why he agreed to comment on other landmark cases like those that outlawed segregation and guaranteed one-person, one-vote, but would not engage in a discussion of Roe.

Ms. Feinstein asked whether Judge Alito did not agree that Roe “was well settled in court.”

He said, “It depends on what one means by the term 'well settled.' ”

Ms. Feinstein said that she understood that it was difficult to answer such a sensitive question, “but the people are entitled to know.”

Judge Alito said it was reasonable to presume that school desegregation and one-person, one vote were beyond judicial debate, while aspects of the abortion issue continued to come before the courts.

“I don't think it's appropriate for me to speak about issues that could realistically come up.” he said. “And my view of Brown v. Board of Education, for example, which was one of the cases that was cited in connection with this issue about where someone in my position should draw the line, seems to me to embody a principle that is now not subject to challenge, not realistically subject to being challenged.”

But the Times failed to mention Feinstein's assertion that Alito should be just as willing to comment on abortion rights as he was on the one-person, one-vote doctrine, since there are cases related to both issues currently pending before the Supreme Court: “If you're willing to say that you believe one-man, one-vote is well settled and you agree with it, I have a hard time understanding how you separate out Roe,” she told Alito. Feinstein then noted that the Texas redistricting cases League of United Latin American Citizens v. Perry and Travis County Texas v. Perry, among others, are pending before the Supreme Court. Those cases involve challenges to the Texas legislature's redistricting as a violation of the one-person, one-vote principle if confirmed, Alito might well have to consider that principle's relevance. Alito had affirmed his commitment to one-person, one-vote in his January 10 testimony, stating: “I think that the principle of one-person, one-vote is a fundamental part of our constitutional law. I do not see any reason why it should be re-examined.”

Without addressing the Perry cases, Alito responded to Feinstein in the January 11 hearing by mentioning Brown v. Board of Education -- not a case involving the one-person, one-vote principle -- as a case demonstrating that it is safe for a judge to affirm a principle that is “not realistically subject to being challenged,” but not to prejudge “an issue involve[ing] something that is in litigation.” From the January 11 nomination hearing:

FEINSTEIN: [Y]ou do not agree that it [Roe] is well settled in court?

ALITO: I think that depends on what one means by the term “well settled.”

[...]

ALITO: [L]et me just say this: As a judge on the court of appeals or if I'm confirmed as a justice on the Supreme Court, it would be wrong for me to say to anybody who might be bringing any case before my court, “If you bring your case before my court, I'm not even going to listen to you; I've made up my mind on this issue; I'm not going read your brief; I'm not going to listen to your argument; I'm not going discuss the issue with my colleagues. Go away. I've made up my mind.”

That's the antithesis of what the courts are supposed to do. And, if that's what “settled” means, then I think that's not what judges are supposed to do. We are --

FEINSTEIN: Let me interrupt you for a moment, if I may.

You were willing to give your view on one-man, one-vote. And yet there are four cases pending in the court right now on one-man, one-vote.

And that's where I have a hard time. The cases are LULAC v. Perry, Travis County v. Perry, Jackson v. Perry, and G.I. Forum of Texas v. Perry.

That's where I have a hard time. If you're willing to say that you believe one-man, one-vote is well settled and you agree with it, I have a hard time understanding how you separate out Roe.

I understand why. If you say one thing, you upset my friends and colleagues on that side. If you say the other, you upset those of us on this side. But the people are entitled to know.

ALITO: I don't think it's appropriate for me to speak about issues that could realistically come up.

And my view of Brown v. Board of Education, for example, which was one of the cases that was cited in connection with this issue about where someone in my position should draw the line, seems to me to embody a principle that is now not subject to challenge, not realistically subject to being challenged, not within the legitimate scope of constitutional debate any longer that there should be facilities that are segregated on the basis of race. And that's where I've tried to draw the line. If an issue involves something that is in litigation, then I think it's not appropriate for me to go further than to say that I would be very respectful of the doctrine of stare decisis, and I would not reach a decision on the underlying issue if one were to get to it without going through the whole decision-making process.