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Dodging Debate On Alito

By E. J. Dionne Jr.
Tuesday, December 6, 2005

When conservatives revolted against President Bush's nomination of Harriet Miers to the Supreme Court, they proudly proclaimed their desire for a big debate over constitutional principles. Now they are running from the fight.

No, they are not giving up on Samuel "I am and always have been a conservative" Alito. They just want to act as if their ardent support for Alito has nothing to do with his ideas or how he might rule. Whatever Alito said in the past that proves conservatives are right in seeing him as a comrade in arms is supposed to be irrelevant to the Senate's debate over his confirmation.

Last week a 1985 memo emerged in which Alito, then a Reagan administration lawyer, outlined a strategy to "advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects."

Alito seems, really and truly, to believe that Roe was a mistake. In his now famous letter seeking a promotion during the Reagan years, Alito said that he was proud of his work in the administration advancing arguments "that the Constitution does not protect a right to an abortion."

Believing that Roe was wrongly decided is a perfectly respectable position. Many, perhaps most, conservatives hold this view. So do some liberal supporters of abortion rights.

Justice Ruth Bader Ginsburg has said that the court overreached in Roe . In his indispensable new book, "Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America," University of Chicago law professor Cass Sunstein -- obviously no conservative -- sees Roe as having "shaky constitutional foundations."

While Sunstein questions the wisdom of overturning Roe now, he understands why it enraged so many conservatives. "With its ambitious ruling, not at all firmly rooted in precedent," Sunstein writes, "the court allowed pro-life citizens to think that they had been treated with contempt -- as if their own moral commitments could be simply brushed aside by federal judges."

You would think that Alito and his supporters would welcome a principled discussion of Roe. In fact, they want to change the subject. When Sen. Dianne Feinstein (D-Calif.) asked Alito about that letter seeking a promotion, she said he told her: "First of all, it was different then. . . . I was an advocate seeking a job. It was a political job. And that was 1985."

Rather than defend his letter, in other words, Alito preferred to leave the impression that he might have been engaging in a bit of opportunism. Does that mean that 20 years from now, he will say that his statements to members of the Senate Judiciary Committee were simply those of an appeals court judge seeking a promotion and were never intended to be taken too seriously?

Alito's supporters also tried hard to minimize the importance of the Roe strategy memo. Steve Schmidt, the White House official who is managing the Alito confirmation, said reading the memo as an indication of "how he would rule as a Supreme Court justice" is "a fairly absurd proposition."

When it comes to having an argument about abortion, the administration's strategy is to cut and run.

There are some conservatives who realize the danger for Alito and their cause if he is seen as evasive. Writing in the Weekly Standard, Terry Eastland, who served in the Justice Department during the Reagan administration, noted that "the views Alito stated in his 1985 essay were plainly and proudly his own, and for that reason they cannot so easily be set aside." Eastland added: "The better strategy for Alito is the more credible one of straightforwardly discussing the substance of what he wrote."

Bruce Fein, a conservative legal scholar who supports Alito and worked with him in the Reagan years, has been outspoken in questioning the conservative strategy of distancing Alito from his own writing. "This idea that all the folks in the Reagan administration were all apparatchiks who didn't believe what they were saying and writing is surreal," Fein told The Post. Over the weekend, Fein warned that "you end up losing more if your credibility is strained and people think you're playing them for dupes."

Some conservatives believe that doing that is the only way to win this game. They point to the defeat of Robert Bork in 1987 to argue that Supreme Court appointees are better off with a strategy of evasion. But there is quiet grumbling among members of the Senate Judiciary Committee that Alito may be telling both sides what they want to hear. That's a long way from the searching discussion of constitutional principles that his nomination once promised to occasion.

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