During MSNBC's live coverage of the confirmation hearings of Supreme Court nominee Samuel A. Alito Jr. on January 9, NBC justice correspondent Pete Williams reported the argument by Alito's defenders that his record as an appellate court judge demonstrates a willingness to set aside his personal views and follow the law. Noting that Alito had said in a 1985 job application that he “personally believe[s] very strongly” that “the Constitution does not protect a right to an abortion,” Williams stated that "[h]is supporters say his personal views don't count, that when he puts on a judge's robes, he follows the law, including the legal precedent upholding abortion rights." But, in simply reporting this argument, Williams ignored the critical distinction between the position of an appellate judge and that of a Supreme Court justice, a distinction that means Alito's appellate court rulings offer little or no indication of how he would rule as a Supreme Court justice.
Appellate court judges must follow Supreme Court precedent or face the threat of reversal, but Supreme Court justices are under no such constraints. Rather, they are free to apply their personal views of how the Constitution should be interpreted and what the law should be. So the assertion that an appellate judge's adherence to precedent indicates that he or she would reach the same decisions as a Supreme Court justice is simply false. As Media Matters for America noted when discussing Alito's concurring opinion in the 3rd U.S. Circuit Court of Appeals' decision in the case Planned Parenthood of Central New Jersey v. Farmer (2000) overturning a late-term abortion ban, Alito explicitly wrote that he was voting to strike down the abortion ban only because he was obligated as an appellate judge to follow Supreme Court precedent. CNN correspondent Jeffrey Toobin noted that Alito would have “a lot more flexibility regarding precedent” as a Supreme Court justice.
Williams's statement recalls a similar mischaracterization of remarks made by Chief Justice John G. Roberts Jr. at the hearing for his nomination to the federal appellate court. As Media Matters previously documented, after Roberts's nomination to the Supreme Court, many reports wrongly cited Roberts's pledge at his 2003 appellate court nomination hearing to “fully and faithfully apply” Roe v. Wade -- the 1973 ruling affirming the right to an abortion -- as evidence that Roberts would vote to uphold the decision if confirmed to the Supreme Court. Media Matters for America documented numerous instances of this mischaracterization -- including one by Williams on July 19, 2005 -- and noted that Roberts's comments about Roe in the context of his appellate court nomination gave little or no information about how he would rule on the Supreme Court.
Williams later improved his description of Roberts's comment on the July 20 edition of MSNBC's Imus in the Morning, saying: “What I think the abortion-rights activists would question, though, is that as a lower court judge he [Roberts] has to abide by the Supreme Court precedents. As a Supreme Court justice, he is on his own.”
From the 11 a.m. ET edition of MSNBC Live on January 9:
WILLIAMS: Judge Alito is sure to be questioned about an application he submitted for a promotion at the Reagan Justice Department in 1985. As a government lawyer, a 35-year-old Samuel Alito said he helped advance legal positions, quote, “in which I personally believe very strongly,” among them, that “the Constitution does not protect a right to an abortion.” But his supporters say his personal views don't count, that when he puts on a judge's robes, he follows the law, including the legal precedent upholding abortion rights. They note that Alito's former law clerks -- many of them staunch Democrats -- say he is a careful judge, not a hard-charging conservative.
