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Proving His Mettle in the Reagan Justice Dept.
"They wanted to find assistants who were sympathetic to [Reynolds's] causes so he couldn't possibly make that claim," said Alito's former colleague Joshua Schwartz, a law professor at George Washington University whose account was confirmed by four other former administration officials. "For affirmative action, it was Sam."
Alito had come to the solicitor general's office as a career lawyer in 1981, after a stint as an assistant federal appellate prosecutor in Newark. Initially, he was assigned to the less controversial area of his expertise, criminal law. But over time, he proved his conservative credentials. He gave money to the National Conservative Political Action Committee, which financed ads painting Democrats as liberal extremists. He donated to Jeffrey Bell, a 1982 GOP Senate primary candidate in New Jersey who opposed abortion and gun control and favored voluntary school prayer. And in 1983, he joined the conservative Federalist Society.
Among the society's featured speakers was Bork, who asserted that the Constitution protected only rights enumerated by the Framers -- a view that foes of his Supreme Court nomination would call threatening to civil rights, abortion rights and limits on police powers.
Any lingering doubts about Alito's commitment to the Reagan cause were put to rest in 1984, when he took over the civil rights agenda cases from a colleague who had left for private practice. Reynolds had branded Alito's predecessor, Carter Phillips, a "quota lover" for insisting on incremental attacks on affirmative action rather than a wholesale assault, Phillips recalled.
But Reynolds came to feel far more comfortable with the mild-mannered Alito. "I don't recall ever disagreeing with him," Reynolds said.
Alito proved his mettle to Reynolds and others in a case called Wygant v. Jackson Board of Education . The case involved a voluntary agreement by a Michigan school board with a history of discrimination to lay off whites ahead of blacks to preserve racial balance. A 1985 brief co-written by Alito argued that the Constitution prohibits the government from treating people differently based on race or gender merely to achieve diversity.
The Supreme Court rejected that broad argument, while striking down the Michigan layoff arrangement. But Solicitor General Charles Fried, who had taken over for Lee, raved about a phrase Alito had come up with to critique affirmative action. Baseball great Hank Aaron would not be regarded as the home-run king "if the fences had been moved in whenever he came to plate," Alito wrote.
More agenda cases started landing on Alito's desk. Charles J. Cooper, who was Reynolds's deputy, said he was "pleasantly relieved" that Alito "was determined not to be an impediment."
Staff lawyers admired the way Alito, while sympathetic to the administration's goals, tended to be more pragmatic about how to achieve them. He was not perceived as "part of the cabal" whose ideological directives threatened the credibility the office had historically had with the Supreme Court, said former colleague Mark Levy, a Democrat who later became a senior political appointee in the Clinton administration.
The administration had been pushing for a frontal assault on Roe v. Wade , the landmark 1973 case establishing a woman's right to an abortion. Senior Justice Department officials saw a vehicle in the 1985 case Thornburg h v. American College of Obstetricians and Gynecologists .
Alito cautioned against what he thought was a pointless and potentially costly gesture. The votes simply were not there. The administration should "make clear that we disagree with the decision," he wrote in a 1985 memo. But rather than urging the court to overturn Roe , he said the focus should be on upholding the abortion regulations at issue in the case, a strategy that he said could make clear the states' interest in "protecting the unborn." That, he said, would "advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects."
Fried overruled him, and the administration lost the case. But Alito's caution was not held against him -- quite the opposite. Cooper said he was convinced that Alito was a team player, simply offering savvy strategic advice to reach the administration's goal. "If it had been followed, who knows where we would be now?" he mused.