By Charles Babington
Washington Post Staff Writer
Saturday, December 3, 2005
Supreme Court nominee Samuel A. Alito Jr. yesterday tried to tamp down criticisms of several past statements -- including his assertion that the Constitution does not protect the right to abortion -- by saying they were personal views or an advocate's work and not necessarily indications of how he might rule if confirmed, according to a key senator who quizzed him for more than an hour.
Alito's effort to distance himself from the recently disclosed 1985 documents came as liberal groups said the writings show him to be much more conservative than the newly confirmed chief justice, John G. Roberts Jr. Alito's explanation was meant to lessen the documents' impact, but it may expose him to accusations of insincerity or irresolution, advocates said.
Left-leaning groups, and at least one prominent conservative, said it is ludicrous for Alito to play down the significance of memos he wrote as a Justice Department lawyer in the Reagan administration in which he said he was "particularly proud" of fighting affirmative action programs and was looking forward to the day the Roe v. Wade abortion ruling is overturned.
Alarmed that commentary on Alito, from the political left and right, was getting increasingly negative, Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) asked the nominee this week to answer several questions in writing. The White House asked Specter to meet with Alito, instead, and then relay his comments, which the senator did in a news conference at the Capitol.
At issue are two memos that Alito, 55, wrote in 1985. In the first, a bid for a promotion, Alito wrote that he was "particularly proud" of contributing to cases arguing "that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion." He was pleased, he wrote, "to help to advance legal positions in which I personally believe very strongly."
In the second memo, he outlined a strategy for attacking the landmark 1973 court ruling that legalized abortion nationwide. "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 wrote, after volunteering to help in the matter.
Specter, referring to notes as he briefed reporters, said Alito discussed both memos "and raised a sharp distinction, as he put it, between his role as an advocate and his role as a judge." Especially concerning the second memo, Specter said, Alito "said he was writing it as an advocate; that his role as a judge would be different."
As for the earlier memo, the senator said, "I asked him about the line here, 'The Constitution does not protect a right to an abortion.' And he identifies that as a personal opinion . . . and he said that his personal opinion would not be a factor in his judicial decision."
Asked whether Alito's explanations satisfied him, Specter said, "I'm here to report on his answers. . . . I am not satisfied; I am not dissatisfied."
Specter, who supports abortion rights, said Alito appeared sympathetic to the argument that Roe should be treated with great respect because it has been the law for 32 years. "Judge Alito says that when a matter is embedded in the culture, it's a considerable factor in the application of stare decisis ," Latin for "to stand by that which is decided," Specter said. Asked for details, Specter said: "I'm not going to interpret his words. I think those words are very meaningful as to jurisprudence and as to weight." He added: "I did not ask him whether he would push to overturn Roe v. Wade. "
Several liberal groups said it was absurd for Alito, a federal appeals court judge, to try to distance himself from the memos because he clearly described his views as deeply held. Judith C. Appelbaum of the National Women's Law Center said Alito applied his sentiments about abortion rights in 1991, when he ruled in a major case -- Casey v. Planned Parenthood -- that a married woman must inform her husband before having an abortion. The Supreme Court in 1992 overturned that provision of a law.
Conservative lawyer Bruce Fein, who was a Justice Department official in the Reagan administration, said he is baffled that Alito is pulling back from his well-argued 1985 memos. "I think the administration is misreading the Senate and the public, because you end up losing more if your credibility is strained and people think you're playing them for dupes," Fein said.
But Janet M. LaRue of the conservative group Concerned Women for America said she is not bothered that Alito is putting space between himself and his 20-year-old memos. "I would have been surprised if he had said anything else," she said. All her group wants, she said, is a judge "to make an objective ruling based on the law and the facts. It's a joke for the left to pretend that none of their favorite judges have deeply held beliefs."
Several conservative groups, meanwhile, plan a major push beginning Monday to portray Alito's opponents as anti-God. Talking points for the effort, which will involve ads and grass-roots organizations, were laid out in a strategy memo by Grassfire.org, which opposes abortion and same-sex marriage. Alito's opponents are united by "an agenda to purge any and all references to religion from our public life," the memo says.
The coalition, which includes the Judicial Confirmation Network, plans to send 2.3 million e-mails on the subject and hopes to "flood Senate offices with letters, faxes and phone calls." It will be joined in the effort by Fidelis, a Roman Catholic organization that describes itself as "pro-life, pro-family and pro-religious liberty."
Staff writer Jo Becker contributed to this report.