Analysis

For Alito, a Tricky Question of Statements vs. Thoughts

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By Charles Lane
Washington Post Staff Writer
Sunday, December 4, 2005

The recent disclosure of memos detailing Supreme Court nominee Samuel A. Alito Jr.'s opposition to abortion rights as a Reagan administration lawyer has created a delicate challenge for the 55-year-old federal appeals judge.

The White House has tried to reassure abortion rights Republicans and moderate Democrats that Alito has an open mind on abortion by pointing to his 15-year record on the bench. That record includes two cases in which he voted to strike down state limitations on access to abortion, and one in which he voted to uphold a restriction.

But the new information adds strong evidence of Alito's personal anti- Roe v. Wade sentiment to the picture.

Now Alito must explain "the possible relationship between these documents and his judicial philosophy, or how his judicial philosophy is separate from these strong statements he makes in the documents," said Michael Gerhardt, a professor of constitutional law at the University of North Carolina at Chapel Hill.

Crucial to Alito's success, legal analysts said, will be his ability to lay out a convincing view of stare decisis -- the legal doctrine that says courts should avoid overturning their past rulings, such as Roe , the 1973 decision that established a constitutional right to abortion nationwide.

He made his first attempt at that on Friday, telling Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), an abortion rights supporter, that "when a matter is embedded in the culture, it's a considerable factor in the application of stare decisis ," Specter said at a news conference. Alito said such reasoning could have implications for Roe , Specter noted.

As an appeals court judge, Alito was required to follow Supreme Court precedent. On the Supreme Court, there would be fewer restraints on his decision-making, but stare decisis would be one of them.

Currently, six justices -- including Justice Sandra Day O'Connor, whom Alito would succeed -- have voted on the court to support Roe . Thus, Alito alone could not tip the balance. If Roe were overturned, abortion would not be banned; rather, each state would legislate on the issue as it saw fit.

Chief Justice John G. Roberts Jr. won confirmation in part because the Senate accepted his self-description as a "modest" judge who would approach Roe and subsequent abortion rights decisions with respect and caution, whether or not he thought they were rightly decided.

Ideologically similar to Alito, Roberts had the advantage of a much skimpier paper trail on his personal views of Roe . In 1991, he wrote a brief for the George H.W. Bush administration that suggested in a footnote that Roe should be overruled, but Roberts chalked that up to his role as a lawyer representing a client.

Before the disclosure of the memos, Alito seemed on course to convincing key senators that he would be like Roberts.

But opponents of the nomination say that was undermined by Alito's job application letter to then-Attorney General Edwin Meese III in 1985, in which Alito said he was "particularly proud" of helping the administration argue that the "Constitution does not protect a right to an abortion."


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