Howard Bashman has posted Judge Alito’s answers to certain written questions posed to him by some Democratic members of the Senate Judiciary Committee. A few of the questions from Sen. Schumer related to election law. Here is a brief summary:
1. Sen. Schumer asked (pdf 32-33) for Judge Alito’s reaction to a statement supposedly made by Justice Scalia that the Court had to take Bush v. Gore or else it would have given the Florida Supreme Court “another couple of weeks in which the United States could look ridiculous.” Judge Alito failed to respond directly to the question, instead giving a general answer about the breadth of the Supreme Court’s ability to grant cert. on important questions.
2. Sen. Schumer (pdf 39) asked Judge Alito about a statement of Doug Kmiec recalling that Alito had remarked once that he was particularly fond of Justice Harlan’s dissent in Reynolds v. Sims. Judge Alito responded: “I have long admired Justice Harlan’s legal craftsmanship, which is exhibited in his dissent in Reynolds and in many other opinions, but I do not recall ever sharing his view about the principle of one person, one vote. As far as I can recall, I have always agreed with the principle of one person, one vote. In any event, that is certainly my view today. I explained during the hearings that my concern about reapportionment during my college days related to the application of this principle in later cases to require that all districts be almost exactly equal in population even if this requires disregarding other legitimate factors.”
3. Sen. Schumer (pdf 41) asked Judge Alito if he agreed with Baker v. Carr. Judge Alito said that because the issue is unlikely to come before the Court (or the Third Circuit) he felt “comfortable expressing [his] agreement with the case.”
4. Sen. Schumer (pdf 41) asked if Judge Alito agreed Bush v. Gore presented a justiciable question. Judge Alito declined to answer: “I have not studied this question and am thus not in a position to voice an opinion about it.”
Bottom line: We continue to know very little about Judge Alito’s views of election law.