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Alito Helped Craft Reagan-Era Move To Restrict 'Roe'
Several Democrats on the panel, joined by leaders of liberal advocacy groups, denounced Alito's role in trying to alter abortion laws. Sen. Charles E. Schumer (D-N.Y.) called the memo "stunning," saying it "cast serious doubt on whether Judge Alito can be at all objective on the right to privacy and a women's right to choose." Sen. Edward M. Kennedy (D-Mass.) said the newly released documents "appear to be a clear sign that he passes the right's litmus test with flying colors."
White House officials and some of Alito's former colleagues countered that he was merely a staff attorney helping to carry out a directive of a president who wanted Roe overturned. "The position had already been established," said Charles Cooper, a former assistant attorney general who worked closely with Alito at Justice. "He was by no means suggesting the formulation of a policy."
White House spokesman Steve Schmidt said that, during the past 15 years that Alito has been a federal appeals court judge, he has voted both for and against restrictions on abortion. "Any attempt by opponents of his nomination to suggest that the memo signals how he would rule as a Supreme Court justice on any issue is just silly," Schmidt said.
Republicans also noted that the administration's Thornburgh brief went further than Alito had recommended in trying directly to overturn Roe .
Alito's views on abortion have particular significance, because he would succeed retiring Justice Sandra Day O'Connor, who dissented from the Thornburgh ruling, but has been a steady voice for preserving Roe .
Alito did not list his work on the case in a part of the Senate questionnaire in which he was asked to describe his practice before the Supreme Court and the most significant litigation matters he has handled. In his responses, Alito outlines his judicial philosophy, saying that the government's political branches have an advantage over non-elected judges in "devising comprehensive solutions for social problems." A good judge, he wrote, must "be sensitive to the need to avoid unnecessary interference" in the authority of the executive and legislative branches.
He also distanced himself from a now-defunct conservative group, Concerned Alumni of Princeton, that denounced that university's admissions policies that increased the number of women and minorities on campus. Alito said he was a member of the group in his 1985 application for the appointment as a deputy assistant attorney general, but wrote on the questionnaire: "Apart from that document, I have no recollection of being a member, of attending meetings, or otherwise participating in the activities of the group."
In other documents released yesterday, Alito's belief in strong law enforcement powers was clear. In a May 1984 memo, he criticized a lower court decision involving an unarmed 15-year-old boy who broke into a house, stole $10 and was shot in the back and killed by police. The boy's father sued, and a court of appeals ruled in favor of the father, concluding that police must have probable cause to believe a suspect is armed or otherwise a threat before "taking the drastic measure of using deadly force."
Alito disputed that reasoning, arguing that the rules regarding deadly force "must rest on the general principle that the state is justified," and that the court's standard could let suspects escape. Brian Landsberg, a fellow Justice lawyer who was chief of the Civil Rights Division appeals section, wrote a memo condemning Alito's logic as "a pernicious doctrine" that "would literally destroy some of our most effective civil rights enforcement programs."
Staff writer Charles Babington contributed to this report.