By Charles Babington
Washington Post Staff Writer
Monday, January 9, 2006
Senate Democrats are expected to attack Supreme Court nominee Samuel A. Alito Jr. on multiple fronts at the confirmation hearing that opens at noon today, but their strongest ammunition is likely to come from the nominee's own hand.
Alito wrote two memos in 1985 that rocked political circles when they were made public last November. In one, an application for a promotion in the Reagan administration, Alito wrote that "the Constitution does not protect a right to an abortion." He said he was proud to fight for such causes in which "I personally believe very strongly," and he cited his membership in a conservative Princeton alumni group that has been widely criticized for opposing efforts to bring more women and minorities to that university.
The other memo outlined a strategy for attacking the landmark 1973 court ruling that legalized abortion nationwide, asking: "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?"
Alito and his supporters have sought to put some distance between him and the memos, and Republicans predict he will survive this week's grilling and be confirmed to succeed centrist Justice Sandra Day O'Connor, a step that could shift the court notably to the right. But Judiciary Committee Democrats say they will press him to explain his writings, and they warn that peril may lie in his fully embracing them or trying to disavow them.
"He indicates in his job application his view about what the Constitution guarantees in terms of, for example, women and the issue on abortion," Sen. Edward M. Kennedy (D-Mass.), the committee's most senior member, said yesterday on ABC's "This Week." "We haven't had a statement like that since Robert Bork," the outspoken conservative who was rejected for a Supreme Court seat in 1987.
Kennedy described the now-disbanded group, Concerned Alumni of Princeton, as "anti-black, anti-disabled and anti-women," but he said Alito in 1985 "took a sense of pride in belonging to" it. Alito has said recently he does not recall participating in the group. Democrats say that is an example of evasions they will aggressively challenge.
Another committee Democrat, Charles E. Schumer (N.Y.), said on NBC's "Meet the Press" that Alito in 1985 unequivocally stated "that the Constitution does not provide for a right to an abortion. The worst thing that could happen with Judge Alito is if he tries to duck the question" at the hearing. Unlike recently confirmed Chief Justice John G. Roberts Jr., Schumer said, Alito has expressed his personal and legal views on abortion so clearly that he cannot refuse to discuss them with senators by contending he must remain unbiased in case the Supreme Court revisits the issue.
After Alito met in November with Judiciary Committee Chairman Arlen Specter (R-Pa.), Specter told reporters that the nominee said the 1985 memos expressed his personal views or an advocate's work for the government, and do not necessarily indicate how he might rule on the Supreme Court.
The committee's 10 Republicans and eight Democrats will start questioning Alito tomorrow, as today's schedule is devoted to opening statements by the senators and the nominee. Besides abortion, issues likely to dominate the week include:
Alito's credibility. At the 1990 confirmation hearing for his seat on a federal appeals court, Alito told senators he would not rule in cases involving the Vanguard Group Inc. or Smith Barney Inc., firms that have handled some of his investments. However, he ruled in a 1996 case involving Smith Barney, and a 2002 case involving Vanguard.
Democrats agree that Alito did not profit from the cases, but they have complained about his explanations. Concerning Vanguard, Alito has said he was not required to recuse himself because there was no conflict of interest; the 1990 promise applied only to his first few years on the bench; and a courthouse computer program failed to alert him to the possible need to step aside.
Kennedy cited Vanguard, the Princeton alumni group and other matters in an op-ed piece, headlined "Alito's Credibility Problem," in Saturday's Washington Post. Yesterday, on "This Week," Judiciary Committee member Sam Brownback (R-Kan.) defended the nominee, saying, "I don't think there's a credibility problem at all."
Executive powers. Many liberal groups say Alito's rulings and writings have shown too much deference to the executive branches of state and federal governments. In a 2000 speech, Alito embraced the theory of "the unitary executive," which imbues the presidency with expansive powers. In 1986, as deputy assistant attorney general in the Office of Legal Counsel, he advocated having the president issue statements about the meaning of statutes when he signs them into law, a move that some consider a violation of the separation of powers.
Specter, who plans to hold hearings into President Bush's expanded use of the National Security Agency for domestic spying, said yesterday on CBS's "Face the Nation" that the question of presidential power "will be very, very important" at Alito's hearing.
Commerce and gun control. Alito wrote in a 1996 dissent that Congress did not have the power under the Constitution's commerce clause to pass a law banning possession of machine guns, arguing that there was no evidence the mere possession of such weapons affected interstate commerce.
"He was one of the very few [appellate court judges] to say that the federal government can't regulate machine guns," Schumer said yesterday. The federal government "has regulated machine guns since the days of John Dillinger in 1936."