Yesterday evening, after I wrote my post on the Alito confirmation hearings, some of the MSM coverage changed quite dramatically. At WaPo, the Kennedy-Specter tiff became a side story, and the focus turned to Alito's refusal to proclaim that Roe v. Wade was "settled" law. I missed this part of the live broadcast and didn't focus on it until reading the WaPo headline and lead paragraph from this morning:

Is this a fair characterization of what happened? Did he really "signal" that he might be "willing to revisit" Roe? Maybe. Here is the relevant part of the transcript:

DURBIN: But let me just ask you this: John Roberts said that Roe v. Wade is the settled law of the land. Do you believe it is the settled law of the land?

ALITO: Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973. So it's been on the books for a long time. It has been challenged on a number of occasions. And I discussed those yesterday.

And it is my -- and the Supreme Court has reaffirmed the decision; sometimes on the merits; sometimes -- in Casey -- based on stare decisis.

And I think that when a decision is challenged and it is reaffirmed, that strengthens its value as stare decisis for at least two reasons.

First of all, the more often a decision is reaffirmed, the more people tend to rely on it. Secondly, I think stare decisis reflects the view that there is wisdom embedded in decisions that have been made by prior justices who take the same oath and are scholars and are conscientious.

And when they examine a question and they reach a conclusion, I think that's entitled to considerable respect.

And, of course, the more times that happens, the more respect the decision is entitled to. And that's my view of that.

So it's a very important precedent...

DURBIN: Is it the settled law of the land?

ALITO: If "settled" means that it can't be reexamined, then that's one thing. If "settled" means that it is a precedent that is entitled to respect as stare decisis and all of the factors that I've mentioned come into play, including the reaffirmation and all of that, then it is a precedent that is protected, entitled to respect under the doctrine of stare decisis in that way.

DURBIN: How do you see it?

ALITO: I have explained, Senator, as best I can how I see it.

It a precedent that has now been on the books for several decades. It has been challenged. It has been reaffirmed.

But it is an issue that is involved in litigation now at all levels. There is an abortion case before the Supreme Court this term. There are abortion cases in the lower courts. I've sat on three of them on the Court of Appeals for the 3rd Circuit. I'm sure there are others in other courts of appeals or working their way toward the courts of appeals right now.

So it's an issue that is involved in a considerable amount of litigation that is going on.

There are two ways to read this exchange. On the one hand, Judge Alito may be making the fairly obvious point that Roe v. Wade is a Supreme Court decision and, thus, subject to reconsideration or interpretation. Under this view of the exchange, Judge Alito might have been speaking about any Supreme Court decision, albeit one that has been the focus of much more intense scrutiny than any other.

On the other hand -- and this is what will worry supporters of Roe -- this discussion followed on the heels of a discussion of Brown and Griswold, which Judge Alito treated differently from Roe. Each of those other cases, according to Judge Alito, could be tied to specific provisions of the Constitution.

ALITO: Brown v. Board of Education, as you pointed out, is based on the equal protection clause of the 14th Amendment. And the 14th Amendment, of course, was adopted and ratified after the Civil War. It talks about equality. It talks about equal protection of the law.

...

Griswold concerned the marital right to privacy. And when the decision was handed down, it was written by Justice Douglas. And he based that on his theories of his theory of emanations and penumbras from various constitutional provisions: the Ninth Amendment and the Fourth Amendment and a variety of others.

But it has been understood in later cases, as based on the due process clause of the Fourteenth Amendment, which says that no persons shall be denied due process -- shall be denied liberty without due process of law. And that's my understanding of it.

Judge Alito was unwilling to characterize Roe v. Wade in this same way. For Judge Alito, Roe is "settled law" only to the extent that it has value as a prior decision of the Supreme Court, not because it emanates from particular provisions in the Constitution. While this does not suggest that Alito is intent on overruling Roe, when considered in light of his 1985 memo, I can see why it would concern Roe's supporters.

It's surprising to me that this angle did not receive more prominence in other coverage of the hearings. The coverage in the NYT, for example, sounds much more like my original post:

Also, much was made of Mrs. Alito leaving the hearing room in tears. According to the W$J, this was a mark against the Democrats:

Democrats may have lost points, however, when Judge Alito's wife, Martha, left the hearing room in tears after Republican Sen. Lindsey Graham of South Carolina apologized for the treatment of her husband. She later returned. Alito supporters sent emails about the incident, blaming Democrats for going too far.

For all of the heat generated by the CAP issue, it seems like a non-starter to me, and I suspect that it's prominence will fade over the next few days. By contrast, I expect Democrats to focus the public's attention on Roe v. Wade. This could get ugly.

UPDATE: Everyone is commenting on the calmer tone in today's hearing, and suggesting that Mrs. Alito's tears had an effect. Perhaps, but the Democrats also must realize that they have gotten as much ammunition as they are likely to get from Judge Alito.

I noticed that Senator Biden questioned Judge Alito about the effect of stare decisis on the Supreme Court. "Stare decisis doesn't apply, does it?" Well, of course, Biden knows that it applies, but he wanted to hear Judge Alito say that the Supreme Court could overrule prior decisions. More groundwork for the abortion discussion to come.

Just to be clear, although I expect Democrats to kick up some dust on the abortion issue, I think Judge Alito will be confirmed without a filibuster. As Peggy Noonan rightly observes in today's W$J, the hearings have been a "low-affect tour de force."

UPDATE2: Jack Balkin has an interesting post entitled "The Constitutional Catechism," which discusses what nominees must say about Roe v. Wade to be confirmed. This is the punchline:

What is remarkable about the Roberts and Alito hearings is not that both nominees have resisted supporting Roe but how far they feel they must be willing to go in disguising their actual views about it.

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