1985 Memo by Alito Has Legal Weight, Senators Say

By Charles Babington and Jo Becker
Washington Post Staff Writers
Thursday, November 17, 2005

Two key Republicans and some Democrats said yesterday that Supreme Court nominee Samuel A. Alito Jr. will be unable to assert during his confirmation hearing that his personal views have no bearing on how he might rule because he has stated legal opinions on contentious issues so strongly.

Alito's comments on abortion, affirmative action and other issues in a 1985 memo went beyond personal musings, these senators said, and instead were stated as clear-cut legal opinions. One of those opinions was that "the Constitution does not protect a right to an abortion."

According to the senators, including Republicans Olympia J. Snowe (Maine) and John Cornyn (Tex.) and Democrat Charles E. Schumer (N.Y.), Alito has two options in his ongoing efforts to distance himself from the comments: He can say he has changed his mind, they said, or he can say the accumulation of cases affirming the 1973 Roe v. Wade abortion decision now outweighs his belief that Roe was wrongly decided.

The lawmakers suggested that Alito has largely forfeited a third option that helped some of his predecessors sidestep questions about their legal views and deny opponents a hook for claiming that their future court rulings were predictable. Clarence Thomas, for example, said at his 1991 confirmation hearing that he had barely given a thought to Roe , even though he became an outspoken critic of the ruling soon after joining the Supreme Court.

And Chief Justice John G. Roberts Jr. recently deflected senators' questions about memos he signed in the 1980s attacking Roe , saying he was merely representing his client, the George H.W. Bush administration.

Alito's 1985 memo, which was a bid for a promotion in the Justice Department, did not express "a personal view," Schumer, a Judiciary Committee member, said in a floor speech yesterday. "It is decidedly a legal view which involves judicial philosophy and judicial reasoning." At Alito's committee confirmation hearing, to start Jan. 9, Schumer said, "he cannot, as previous nominees have done, say 'I refuse to answer.' "

Some Republican defenders of Alito agreed. Unless Alito states that Roe should be overturned -- which they consider unlikely -- his answers probably will stress the weight that should be given to legal precedence, or stare decisis , Latin for "to stand by that which is decided." The principle is meant to protect society from jarring changes to settled law, but the Supreme Court can overturn precedents, as it did in striking down "separate but equal" accommodations for blacks and whites.

Alito's 1985 memo "may be a legal opinion, but it is not an answer to the question, 'If confirmed, will you apply the principles of stare decisis in regard to Supreme Court decisions including Roe v. Wade ?' " Cornyn, an Alito advocate, told reporters.

Snowe, who supports abortion rights and is uncommitted on Alito, met with him yesterday and then addressed reporters. "He didn't repudiate what he said" in the 1985 memo, she said, and it was unclear to her whether he still thinks the Constitution does not protect abortion rights.

"It goes back to the question of how he will regard precedent," Snowe said. "Ultimately that becomes the essence of the issue.

"He said that obviously he has changed over the years, primarily because he's been a judge over the last 15 years," Snowe said.

Meanwhile, more details emerged about cases on abortion and affirmative action that Alito handled while at the Office of the Solicitor General. A 1986 Michigan case, Wygant v. Jackson , struck down an arrangement between a teachers union and local school board to lay off white teachers before laying off blacks with less seniority to preserve minority hiring gains. Alito signed a brief for the Reagan administration opposing the arrangement. It suggested that such a system could teach students that 120 years "after the end of slavery, government may still advance some and suppress others, not as individuals but because of the color of their skin."

The 5 to 4 decision striking down the arrangement was nevertheless seen as a defeat for the Reagan administration, because the court upheld affirmative action plans so long as they were carefully tailored to remedy past discrimination. In two other cases, the Supreme Court upheld court-ordered workplace discrimination remedies after rejecting arguments Alito had pressed on the government's behalf.

Alito was also involved in Thornburgh v. American College of Obstetricians and Gynecologists , in which the Reagan administration argued that "this court should overrule" Roe v. Wade . A senior administration official said that Alito recalled working on the case in the mid-1980s before the brief was submitted to the Supreme Court but does not recall working on the brief itself.

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