Supreme Court Associate Justice nominee Alito listens to US Sen Talent on Capitol Hill
Larry Downing  /  Reuters file
Supreme Court nominee Samuel Alito in a meeting with senators on Capitol Hill earlier this month.
updated 12/1/2005 4:51:41 PM ET 2005-12-01T21:51:41

A 1985 memo in which Supreme Court nominee Samuel Alito suggested that the Justice Department try to chip away at abortion rights has reignited a battle over what documents should be available to senators as they evaluate judicial candidates.

“This information reinforces the need for the Senate to obtain all relevant information about this nominee, including his other solicitor general memos and his work in the Office of Legal Counsel,” said Sen. Patrick Leahy, D-Vt., who has been fighting with the White House for greater access to nominees’ documents for years.

“We now see why this administration has resisted so strenuously to the release of these sorts of memos,” said Leahy, the top Democrat on the Senate Judiciary Committee, which will hold hearings on Alito’s nomination in January.

Republicans argue that Democrats are just looking for a way to block President Bush’s conservative nominees from being approved by the GOP-controlled Senate.

The questions “disturbingly seem to be suggesting that some Democrats are ready to implement a strategy ... that they would obstruct the Roberts nomination and later nominations by claiming that they didn’t have sufficient access to documents,” White House spokesman Steve Schmidt said.

The administration refused to permit the release of similar documents during Chief Justice John Roberts’ confirmation, and Schmidt said, “The rest of Alito’s internal solicitor general’s documents are still privileged and will not be released.”

The abortion memo, written while Alito was working for the solicitor general’s office, was released Wednesday by the National Archives.

In the May 30, 1985, memo, Alito recommended the Justice Department weigh in on state-level cases seeking abortion restrictions instead of attacking the Supreme Court’s 1973 Roe v. Wade abortion ruling. This approach was “free of the disadvantages that would accompany a major effort to overturn Roe. When the court hands down its decision and Roe is not overruled, the decision will not be portrayed as a stinging rebuke,” he wrote.

“No one seriously believes that the court is about to overrule Roe v. Wade,” Alito wrote. Referring to a high court decision to review two abortion-related cases, he asked, “What can be made of this opportunity to advance the goals of bringing about the eventual overruling ... and in the meantime, of mitigating its effects?”

Boxer's concerns
Sen. Barbara Boxer, D-Calif., said, “The more we know, the more disturbing it gets.”

The document “raises very serious questions about whether Judge Alito has been sincere about his respect for the precedent of Roe v. Wade, which guarantees a woman the right to choose,” she said.

At the Justice Department, Assistant Attorney General Rachel Brand said, “Nothing in that memo indicates how he’d rule as a judge on abortion cases.”

Documents have been at the center of several judicial battles between the Bush White House and Senate Democrats.

Democrats successfully filibustered Hispanic lawyer Miguel Estrada’s lower court nomination, saying the combination of his refusal to fully answer their questions and the White House’s refusal to turn over his solicitor general documents made him too risky.

Bush nominated Alito to the Supreme Court on Oct. 31, after White House counsel Harriet Miers withdrew her nomination. The White House said Miers had withdrawn because of senators’ demands to see internal documents related to her role as counsel to the president. Miers, however, also had lost the support of conservatives.

Hearings begin Jan. 9
The Judiciary Committee’s confirmation hearings for Alito begin Jan. 9, and majority Republicans hope for a final vote on his nomination on Jan. 20.

On Wednesday, Alito turned in a 64-page response to a Judiciary Committee questionnaire. Asked to provide his views on judicial activism, Alito wrote that the courts “must engage in a constant process of self-discipline to ensure that they respect the limits of their authority.”

Judges must “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,” he added.

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