Newly Released Papers Energize Alito's Critics

By Charles Babington
Washington Post Staff Writer
Friday, December 2, 2005

Newly released documents by Samuel A. Alito Jr. touching on abortion and other issues have pumped new life into efforts to sharply challenge his nomination to the Supreme Court, liberal activists said yesterday.

Details of Alito's 1985 strategy to undermine the landmark Roe v. Wade ruling have energized abortion rights groups, they said, but broader questions about his overall credibility may eventually prove more problematic to the Bush administration's confirmation efforts. One Democratic senator demanded yesterday that Alito explain why he omitted references to a 17-page abortion-strategy memo in a questionnaire recently returned to the Senate Judiciary Committee, while another senator -- Edward M. Kennedy (D-Mass.), the committee's senior member -- said that "a credibility gap is emerging with each new piece of information released on Judge Alito's record."

In a sign of Republican nervousness about the criticisms, Committee Chairman Arlen Specter (R-Pa.) quickly scheduled a meeting with Alito for today, after which the senator will speak to reporters. Although Specter sometimes differs with President Bush, the White House credits him with stepping in to smooth out controversies in the previous confirmation efforts, for Chief Justice John G. Roberts Jr. and White House counsel Harriet Miers, who ultimately withdrew and was replaced by Alito.

The flurry of events was triggered by the release Wednesday of the lengthy 1985 memo in which Alito, then a Justice Department lawyer in the Reagan administration, outlined a strategy for attacking the 1973 Roe ruling without making a "frontal assault" that might prove unwinnable. "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 asked in the memo concerning a Pennsylvania case before the Supreme Court, Thornburgh v. American College of Obstetricians and Gynecologists.

Alito did not cite the case in his responses to the Senate questionnaire, also released on Wednesday, which asked him to describe the most significant litigation matters he has handled. The omission angered Sen. Charles E. Schumer (D-N.Y.), a member of the Judiciary Committee, which will convene for Alito's confirmation hearing on Jan. 9.

"In light of your 17-page memorandum and the accounts of your former colleagues, your 'participation in the litigation' was clearly substantial," Schumer said in a letter asking Alito to explain. Citing a previously disclosed memo in which Alito successfully sought a promotion in the Justice Department, Schumer added: "In your 1985 job application, written only a few months later, you appeared to highlight your work on the Thornburgh case."

Although the Wednesday disclosures reinvigorated liberal groups hoping to block Alito's confirmation, Democrats steered clear of suggesting that they might form the basis of a filibuster, a tactic in which opponents could try to thwart the nominee even though Republicans hold 55 of the chamber's 100 seats. "The more we learn about Judge Alito, the more problematic this nomination becomes," said Rebecca Kirszner, spokeswoman for Senate Minority Leader Harry M. Reid (D-Nev.). "The Democratic caucus will wait for the hearings before any decisions are made."

Specter, who supports abortion rights, said of the 1985 Thornburgh memo: "I do not think it materially or significantly changes the political dynamics of the Senate. I do not believe that there is a basis for a filibuster here."

Democrats said they will press Alito to explain other circumstances in which his statements have conflicted to some degree. When confirmed to a federal appeals court in 1990, Alito told senators he would not rule in matters regarding the investment firm Vanguard Group Inc., in which he had several accounts. Alito did rule in a 2002 case involving Vanguard, however, and later gave several accounts of the circumstances. He said a courthouse computer program failed to alert him to the potential conflict of interest; that he was not legally or ethically bound to recuse himself; and that his statement to the senators applied only to his first few years on the court.

Democrats also noted that in his questionnaire responses, Alito distanced himself from a conservative group, Concerned Alumni of Princeton, that denounced that university's admissions policies in the 1970s and early 1980s. The policies increased the number of female and minority students. Alito cited his membership in the group in his 1985 application for the Justice Department promotion, but he wrote on the questionnaire released on Wednesday: "Apart from that document, I have no recollection of being a member, of attending meetings, or otherwise participating in the activities of the group."

Kennedy said in a statement yesterday that Alito "bears an especially heavy burden at the hearings in January to explain the growing number of discrepancies between his current statements and his past actions."

"He told senators that he wasn't involved in Thornburgh , yet a detailed memo was released [Wednesday] showing that he was," Kennedy said. "In 1990, he said he'd recuse himself from all cases involving Vanguard. Yet he didn't and has changed his story as to why six times. Its not the crime, its the cover up."

White House spokesman Steve Schmidt defended Alito yesterday, saying, "The only people whose credibility is at stake are people who are trying to invent issues out of thin air."

Sen. John Cornyn (R-Tex.) said in a statement that Alito handled questions about the Thornburgh case truthfully. "We do not need nominees to tell us every matter in which they made even an informal contribution in the Solicitor General's office," Cornyn said. "To ask nominees to list all such informal contributions is to ask them simply to list every case pending in the Solicitor General's office while they were there. That would, of course, render that question meaningless."

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