By Amy Goldstein and Jo Becker
Washington Post Staff Writers
Thursday, December 1, 2005
As a Justice Department lawyer in the Reagan administration, Supreme Court nominee Samuel A. Alito Jr. helped devise a legal strategy to persuade the high court to restrict and eventually overturn Roe v. Wade , the historic decision legalizing abortion.
In a memo disclosed yesterday that he wrote in 1985 as an assistant to the solicitor general, Alito recommended that the administration submit a brief to the Supreme Court, asking it to uphold a Pennsylvania law that imposed a variety of abortion restrictions and "make clear that we disagree with Roe v. Wade ."
Alito argued in the 17-page document that stepping into the case, Thornburgh v. American College of Obstetricians and Gynecologists , would be a more effective strategy for President Ronald Reagan than a "frontal assault" on the landmark case and would not "even tacitly concede Roe 's legitimacy." Disagreeing with the administration's position, the court struck down the Pennsylvania law the following year.
Coming on a day when the Supreme Court heard oral argument in the most significant abortion rights case to reach the court in five years, the abortion memo immediately touched off intense new criticism from Democrats -- and hesitancy among some moderate Republicans -- over Alito's nomination.
The memo was among 336 pages of documents, released yesterday by the National Archives, spanning Alito's six years as a lawyer in the Reagan Justice Department and three years as U.S. attorney for New Jersey. The White House also released yesterday Alito's 64 pages of answers to questions posed by the Senate Judiciary Committee about his qualifications and views.
Alito was 35 years old and a civil-service lawyer when he wrote the abortion memo in May 1985. It was just six months before he sent a letter to then-Attorney General Edwin Meese III as part of his successful application for a higher-ranking political appointment, saying that he was "particularly proud" of his contribution to cases in which the administration argued "that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."
When the job-application letter became public two weeks ago, White House officials played down Alito's work on the Thornburgh case, saying that he had had a peripheral role and had not helped to write the actual brief. But the memo makes clear that, at a time when Reagan's top aides had instructed the department to work to overturn Roe , Alito furnished some of the detailed legal logic and strategy toward that goal.
A co-worker said that Alito eagerly volunteered to help prepare the brief. Albert Lauber, another assistant to the solicitor general at the time, recalls having been assigned to write the portion of the brief defending Pennsylvania's abortion law. Lauber said in an interview that Alito "just walked into my office one day and said, 'You know, this is a big assignment and do you want some help?' "
In the memo, he wrote: "What can be made of this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime of mitigating its effects?" He then urged the department to argue that provisions in the Pennsylvania law "are eminently reasonable and legitimate and would be upheld without a moment's hesitation in other contexts."
He referred to a doctor who performs the procedure as an "abortionist" and railed against a different court decision that had struck down an ordinance that he said was "designed to preclude the mindless dumping of aborted fetuses into garbage piles." He called the decision "almost incredible."
Yesterday's disclosure added fuel to the already-inflamed debate over his candidacy for the court.
Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), a supporter of abortion rights, said the memo and job-application letter will be "the lead question" he will pursue when he presides over Alito's confirmation hearings, to begin on Jan. 9. Specter said in an interview that he will ask Alito "how he will factor whatever personal views he may have contrasted with the [ Roe ] case, which has stood for 32 years. . . . I want to hear what he has to say, and I want to hear how he says it."
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.