WASHINGTON — As a Reagan administration lawyer in 1985, Samuel Alito made clear his hope that the Supreme Court would one day overturn a landmark ruling that established abortion rights.
But Alito, now a Supreme Court nominee, argued against an all-out assault on the Roe v. Wade ruling, fearing such an assault would fail. Instead, he recommended a policy of “mitigating its effects” by trying to persuade justices to accept state regulations on abortions.
While working as an assistant to the solicitor general, Alito called for the office, which represents the federal government before the Supreme Court, to help defend provisions of the Pennsylvania Abortion Control Act. Some of the act’s provisions had been overturned by a panel of the 3rd U.S. Circuit Court of Appeals in the case American College of Obstetricians and Gynecologists v. Thornburgh.
Alito wrote in the memo, released by the National Archives on Wednesday, that “no one seriously believes that the court is about to overrule Roe v. Wade.”
But, he said, “By taking these cases, the court may be signaling an inclination to cut back. What can be made of this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects?”
Alito was nominated by President Bush on Oct. 31 as the replacement for retiring Justice Sandra Day O’Connor, who has been a deciding vote in abortion cases. Alito’s opponents fear that he and recently confirmed Chief Justice John Roberts would swing the Supreme Court to the right and lead to overturning Roe v. Wade.
Senators say Alito has expressed “great respect” for the precedent established by the landmark abortion decision but didn’t commit to upholding it in his two weeks of private meetings with them. Alito also has distanced himself from his earlier comments that there was no constitutional right to abortion, with senators saying that he has told them that now “I don’t give heed to my personal views, what I do is interpret the law.”
But in 1985, Alito urged that the Justice Department attack the issue by working for limitations on abortion.
“I find this approach preferable to a frontal assault on Roe v. Wade,” Alito wrote. “It has most of the advantages of a brief devoted to overruling of Roe v. Wade; it makes our position clear, does not even tacitly concede Roe’s legitimacy, and signals that we regard the question as live and open. At the same time, it is free of many of the disadvantages that would accompany a major effort to overturn Roe.”
For example, if the court did not overturn Roe, “the decision would not be portrayed as a stinging rebuke,” Alito said.
Schumer has doubts
Sen. Charles Schumer, D-N.Y. and a member of the Senate Judiciary Committee, called the memo “stunning.”
“These latest revelations cast serious doubt on whether Judge Alito can be at all objective on the right to privacy and a woman’s right to choose,” Schumer said.
White House spokesman Steve Schmidt called Schumer’s criticism “unfair.”
“Judge Alito should be evaluated on his 15 years of jurisprudence as a federal judge where he has authored hundreds of opinions,” Schmidt said. “On some of those cases, he has upheld abortion rights. In other cases he has not. To leap to conclusions and try to infer future decisions from 20-year-old memos borders on the silly.”
Abortion is likely to be a major issue during Alito’s confirmation hearings beginning Jan. 9. Senate Judiciary Chairman Arlen Specter, R-Pa., said Wednesday he will question Alito on affirmative action and voting rights issues as well.
Alito: Guard against activism
Alito can also expect to be questioned about judicial activism. The nominee on Wednesday told senators that federal judges must constantly guard against slipping into judicial activism to get the results they want on cases.
“Our constitutional system relies heavily on the judiciary to restrain itself,” Alito said in a 64-page response to a Senate Judiciary Committee questionnaire.
“To do this, judges must engage in a continual process of self-questioning about the way in which they are performing the responsibilities of their offices,” he continued. “Judges must also have faith that the cause of justice in the long run is best served if they scrupulously heed the limits of their role rather than transgressing those limits in an effort to achieve a desired result in a particular case.”
Alito, however, said he saw no problem with federal judges crafting strong remedies “when a constitutional or statutory violation has been proven.”
“Some of the finest chapters in the history of the federal courts have been written when federal judges, despite resistance, have steadfastly enforced remedies for deeply rooted constitutional violations,” Alito wrote.
Alito said that he had been aware he was being considered for a seat on the Supreme Court from almost the beginning of the Bush presidency.
He was first interviewed on the subject on June 24, 2001, by then-White House Counsel Alberto Gonzales and again on May 5 of this year by a group that included Vice President Dick Cheney, Gonzales (now attorney general), and White House Counsel Harriet Miers. Miers followed up with another interview a few weeks later.
Bush personally interviewed him for the position on July 14. On Oct. 28, after Miers had been nominated for the job and withdrawn, the president telephoned Alito. Bush formally offered him the position Oct. 31.
Issues about group at Princeton
Alito also said he had no memory of being in a group called Concerned Alumni of Princeton, formed when Princeton started admitting women, which accused the administration of lowering standards to allow women and minorities to attend.
“A document I recently reviewed reflects that I was a member of the group in the 1980s,” Alito said. “Apart from that document, I have no recollection of being a member, of attending meetings, or otherwise participating in the activities of the group.”
Alito also noted his wife was sued by another motorist after a traffic accident in June 2000. The suit was settled and dismissed.
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