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Alito's Smoking Gun

By Harold Meyerson
Wednesday, November 16, 2005

Samuel Alito could not have put it more plainly. "The Constitution," he wrote in a 1985 job application he posted to the Reagan administration's attorney general, Ed Meese, "does not protect a right to an abortion."

The folks charged with getting Alito confirmed as Sandra Day O'Connor's successor are insisting that the judge's declaration is not a smoking gun. Alito's subsequent record on the federal appellate bench, said Republican Sen. John Cornyn of Texas, "shows he has indeed put his personal views on abortion aside." And in the Washington Times story that revealed the existence of the application, an unnamed Republican official insisted, "the issue is not Judge Alito's political views during the Reagan administration." The issue was the hundreds of opinions Alito had authored in the years since, in "none of which is it evident what his political philosophy is."

Now, maybe I'm cockeyed here, but I don't read Alito's abortion assertion as either personal or political. A personal view would say, "I'm opposed to abortion." A political declaration would say, "Abortion is a bad public policy." But those aren't the sentiments that Alito voiced. What he said, if you'll pardon the strict construction here, is that there is no constitutional right to an abortion. Which is a viewpoint, if agreed to by five Supreme Court justices, that can change the law, and social fabric, of the land.

Alito's advocates argue that he never once called for overturning Roe v. Wade during his 15 years on the appellate bench. But appellate judges interpret the law within the framework that the Supreme Court lays out. Supreme Court justices can change that framework when they see fit -- and they do. Those are the Supreme Court decisions that make the history books, and there are a number of them. Deference to precedents may be a pillar of the law, but -- and on this, conservatives and liberals agree -- it is clearly less of one for Supreme Court justices than for appellate and trial judges.

Alito's champions would have us believe, however, that he will defer even to precedents that he regards as unconstitutional -- despite the fact that the job of a justice is precisely to determine what is and isn't constitutional. That's asking us to believe a lot.

Clearly, the senators charged with questioning Alito will ask him if he still believes what he wrote 20 years ago. In this instance, since his assertion to Meese was so unequivocal, not answering has to be taken as a de facto yes. He could argue, I suppose, that Roe is a more settled point of law now, 32 years after the decision, than it was in 1985. But do time and repeated citation really validate a ruling that Alito viewed -- and unless he tells us otherwise, still views -- as unconstitutional to begin with? Do Alito's constitutional views count for nothing? Did George W. Bush appoint him simply to leave everything as is?

Alito's antipathy toward Roe wasn't the only high point of his '85 job application. He also noted that he disagreed with the Warren Court's decisions "in the areas of criminal procedure, the Establishment Clause and reapportionment." Reapportionment? By far the most notable reapportionment decision of the Warren Court was its famous one-man, one-vote ruling, which required state legislatures to create districts of equal population. By 1985 this decision -- unlike Roe -- had won universal acceptance. What on earth did Alito disagree with here? The disenfranchisement of pasture and cow?

Alito's memo to Meese was, to be sure, a job application, and the assertions people make when applying for jobs tend to the hyperbolic. But Sam Alito comes off as one of nature's straight shooters, and I see no reason to take his declarations as anything other than accurate representations of his beliefs. Which means, unless he's reversed his thinking or unless deference to precedent trumps his deepest beliefs on constitutionality, that Justice Samuel Alito would, given the opportunity, abolish a woman's federal right to reproductive choice. It's not personal for him; it's constitutional. But it's plenty personal for the American people.

meyersonh@washpost.com

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