In private meetings this month, Alito has left several senators with the impression that he would be reluctant to overturn Roe because it has been the law of the land for 32 years. In 15 years as an appeals court judge, when Alito has been bound to follow Supreme Court precedent, his record on abortion is mixed.
In one case, Alito said it was not an "undue burden" for a married woman seeking an abortion to have to notify her husband, a position that the Supreme Court refuted.
But in other abortion-related cases, he voted to strike down a Pennsylvania law that imposed strict new requirements on poor women seeking federally funded abortions, ruled that a New Jersey ban on a late-term abortion procedure was unconstitutional, and concurred in an opinion that found that a fetus has no constitutional rights.
Sen. John Cornyn (R-Tex.) said yesterday that Alito's track record "shows that he has indeed put his personal views on abortion aside."
"I'm not sure it is news that Judge Alito is pro-life, nor that Roe v. Wade was poorly reasoned," Cornyn said. "Scholars and judges from both sides of the political spectrum . . . have reached the same conclusion."
But Sen. Arlen Specter (R-Pa.), chairman of the Judiciary Committee and a supporter of abortion rights, said Alito's 1985 comments obligate the Senate to "question him closely" about the weight he would give to the roughly three dozen abortion-related decisions since Roe .
Sen. Patrick J. Leahy (Vt.), the committee's ranking Democrat, went further. He said the memos reveal "an aggressive participant in an ideological movement intended to withdraw discrimination protections from workers and even criticized the concept of one person, one vote, among other fundamental rights."
Some of what Alito wrote in his memos can be seen in his later rulings as a judge.
On the one major affirmative action case he heard, he ruled that a New Jersey school district could not lay off equally qualified white teachers over blacks to promote diversity.
Another contentious issue that senators plan to press Alito on is Congress's authority to pass laws governing a wide range of issues, such as domestic violence and the protection of endangered species.
In one of Alito's few rulings on that authority, he wrote in a 1996 dissent that Congress did not have the power to pass a federal law banning possession of machine guns, arguing that there was no evidence the mere possession of an automatic weapon affected interstate commerce.
The memos released yesterday show that Alito took a similarly dim view of Congress's authority a decade before, when he unsuccessfully urged the president to veto a bill aimed at protecting consumers who buy used cars by making odometer fraud more difficult.
Because the law required states to adopt a more uniform method of reporting mileage figures on automobile titles, Alito wrote that it violated the principles of federalism by allowing Congress to intrude on a matter traditionally regulated by the states.
"It is the states, and not the federal government, that are charged with protecting the health, safety and welfare of their citizens," Alito wrote.
The National Archives withheld several pages of Alito records based on privacy exemptions. Other documents relating to his tenure in the Justice Department are still outstanding.
Staff writer Dale Russakoff contributed to this report.
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