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Alito Pushed Abortion Fight Under Reagan
By DAVID ESPO, AP Special Correspondent2 hours, 25 minutes ago
As a young government lawyer opposed to abortion rights, Samuel Alito argued for a legal strategy of chipping away at the landmark Supreme Court ruling rather than mounting an all-out assault likely to inflict a defeat on the Reagan administration, according to documents released Wednesday.
"No one seriously believes that the court is about to overrule Roe v. Wade," the current Supreme Court nominee wrote in an internal Justice Department memo on May 30, 1985. Referring to a high court decision to review two abortion-related cases at the time, 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."
The memo was among several hundred pages of documents dating from Alito's 1981-1987 tenure in the Justice Department, released on the day the Supreme Court heard arguments in an abortion case for the first time in five years.
The argument before the justices Wednesday concerned the validity of a New Hampshire law that requires a parent to be told before a daughter ends her pregnancy roughly the type of case that Alito was writing about two decades ago when he urged the administration to seek small victories in its legal battle against abortion.
While no ruling in the current case is expected for months, the case will provide the first indication of Chief Justice John Roberts' views on abortion cases, and possibly a last word from Justice Sandra Day O'Connor. She has been the swing vote in the past on rulings that upheld abortion rights, and Alito's nomination as her replacement has raised the stakes for his confirmation battle.
Apart from the release of Reagan-era records from the National Archives, the White House made public Alito's answers to a questionnaire from the Senate Judiciary Committee. The panel plans confirmation hearings beginning Jan. 9, and majority Republicans hope for a final vote on his nomination on Jan. 20.
Asked to provide his views on judicial activism, Alito, 55 and a veteran of 15 years on the 3rd U.S. Circuit Court of Appeals, 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.
On another matter, Alito stepped carefully around his one-time membership in Concerned Alumni of Princeton, a conservative organization that sparked controversy two decades ago by saying school officials had lowered admission standards to accept women and minority applicants.
"A document I recently reviewed reflects that I was a member of the group in the 1980s. Apart from that document, I have no recollection of being a member, of attending meetings or otherwise participating in the activities of the group," he wrote the Senate.
Alito's current recollections differ from his memory at the time he was seeking appointment to the Reagan administration. In a 1985 job application letter in which he said the Constitution does not protect a right to abortion, he wrote that he was currently a member of "the Concerned Alumni of Princeton University, a conservative alumni group."
Alito's 1985 memo on abortion was a blend of personal belief, anger at previous high court rulings and cold-eyed political and legal judgment. On Wednesday it brought a renewal of Democratic doubts over his fitness for the court.
"The significant concerns raised by these documents only magnify the need for Judge Alito to explain whether he still holds the extreme views in his 1985 job application," said Sen. Edward M. Kennedy (news, bio, voting record), D-Mass. "He needs to make clear that he no longer questions constitutionally established remedies for discrimination and protections for the right to vote, and that he will not come to the court with an agenda to roll back women's rights."
At the Justice Department, Assistant Attorney General Rachel Brand saw it differently. "Nothing in that memo indicates how he'd rule as a judge on abortion cases," she told reporters.
Alito wrote his 1985 memo at a time the Supreme Court had agreed to hear appeals on two state laws restricting abortion rights. The justices "may be signaling an inclination to cut back," he said in the memo to the solicitor general.
He noted that the court had earlier rejected administration arguments in another case, reaffirming the 1973 abortion rights ruling in the process. "It is almost incredible that the court struck down an ordinance requiring the `humane and sanitary' disposal of aborted fetuses, he wrote, "a provision designed `to preclude the mindless dumping of aborted fetuses into garbage piles.'"
He recommended the Justice Department weigh in on the new cases by making it clear it opposed the 1973 abortion ruling. At the same time, he argued that his 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."
The memo was contained in Justice Department records that had been turned over to the Archives in 1999 by the Clinton administration, according to White House spokesman Steve Schmidt.
The administration refused to permit the release of similar documents during Roberts' confirmation, and Schmidt said "the rest of Alito's internal solicitor general's documents are still privileged and will not be released."
