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No Right to Abortion, Alito Argued in 1985
Reagan-Era Papers Show Staunch Conservatism

By Jo Becker and Charles Babington
Washington Post Staff Writers
Tuesday, November 15, 2005; A01

As a young lawyer in the Reagan administration, Supreme Court nominee Samuel A. Alito Jr. wrote that "the Constitution does not protect a right to an abortion," declared his firm opposition to certain affirmative action programs, and strongly endorsed a government role in "protecting traditional values."

The comments came in a job application to then-Attorney General Edwin I. Meese III in 1985, when Alito was seeking to bolster his conservative credentials and move up at the Justice Department. Alito was subsequently promoted to deputy assistant attorney general.

Alito, an assistant in the Office of the Solicitor General at the time, said he was "particularly proud" of his contributions to cases in which the Reagan administration had argued before the Supreme Court that "racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion." He said it had been a "source of great personal satisfaction" to help advance such legal causes -- positions that he said "I personally believe very strongly."

The letter was included in 168 pages of documents released yesterday by the National Archives. The documents portray an ideologically committed conservative and offer the first public articulation of Alito's personal political philosophy as he portrayed it five years before his appointment as a federal appeals court judge.

With Alito's confirmation hearings scheduled to begin Jan. 9, the papers provoked swift reaction on Capitol Hill and among both liberal and conservative interest groups.

Opponents charged that the documents offer further evidence that Alito would vote to overturn the landmark Roe v. Wade decision recognizing a constitutional right to abortion and would roll back civil rights and protections of religious freedom. Defenders said that Alito would put aside personal views and base his rulings on the law and a respect for Supreme Court precedent.

In his application to Meese, first reported yesterday in the Washington Times, Alito wrote that "I am and always have been a conservative" and described "the greatest influences on my views" as the writings of William F. Buckley Jr., founder of the conservative National Review, and Republican Barry Goldwater's 1964 presidential campaign. Alito said he was "a life-long registered Republican" who had made political contributions to a number of GOP campaigns in his home state of New Jersey as well as conservative national political action committees.

"I believe very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values," he wrote. "In the field of law, I disagree strenuously with the usurpation by the judiciary of decision-making authority that should be exercised by the branches of government responsible to the electorate."

His interest in constitutional law, Alito said, was "motivated in large part" by disagreement with Supreme Court decisions in the 1950s and 1960s, when the high court was led by Chief Justice Earl Warren. Alito said he was particularly disturbed by its rulings "in the areas of criminal procedure, the Establishment Clause and reapportionment."

The Warren Court ruled that police had to inform criminal suspects of their rights before questioning them, that indigent defendants had a right to counsel and that improperly seized evidence could not be used at trial. It found that the establishment clause of the First Amendment prohibited public schools from holding organized Bible reading or prayer. And it established a one-man, one-vote principle by mandating that political districts be drawn in such a way as to be roughly equal in population.

Alito said his intellectual development was further shaped by the writings of the late Alexander M. Bickel, a Yale Law School professor and a leading constitutional conservative. Bickel was a mentor to and close friend of Robert H. Bork, who was nominated to the Supreme Court in 1987 by President Ronald Reagan but did not win confirmation amid a storm of controversy.

Bickel denounced the "results-orientation" of the Warren court and, like many other conservatives, agreed with then-Justice Byron R. White, who in his dissent described the 1973 Roe v. Wade decision as an "extravagant exercise of judicial power." The Roe decision concluded that a right to privacy includes the right to abortion.

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.

© 2005 The Washington Post Company