Harold Meyerson ["Alito's Smoking Gun," op-ed, Nov. 16] is correct to point out that under a "strict construction," Judge Samuel A. Alito Jr.'s assertion that "the Constitution does not protect a right to an abortion" represents a legal conclusion, not a personal opinion or a political declaration.

However, in 1992, when Justices Sandra Day O'Connor, Anthony M. Kennedy and David H. Souter voted to uphold the central holding of Roe v. Wade, they apparently did so not because they thought the Constitution contains a right to an abortion but because, they said, "liberty finds no refuge in a jurisprudence of doubt." In other words, they tacitly declared that although Roe was wrongly decided, they would not disrupt it after 19 years of relying upon it.

That is a question that Judge Alito, as a Supreme Court nominee, needs to answer: Does he agree that certain decisions are best left settled as opposed to being resettled correctly?

Like some of us, perhaps, he may not be able to answer that question until he is presented with the issue in an actual case.


Los Angeles


Charles Babington's Nov. 10 news article, "Democrats Query Nominee on Ethics; At Issue Is Alito's Failure to Recuse Himself Twice," did not report some important facts about claims that Judge Samuel A. Alito Jr. should have recused himself in a case involving the Vanguard mutual fund company.

The story referred to Judge Alito's promise in his 1990 Appeals Court nomination questionnaire to recuse himself from any cases involving Vanguard. Mr. Babington did not report, however, that the questionnaire also asked the judge about "potential conflicts of interest during your initial service" on the bench. The Vanguard case arose more than a decade later.

After the Appeals Court's unanimous decision, the losing party objected to Judge Alito's participation. The Post did not report that Judge Alito then voluntarily recused himself and that a new three-judge appeals court panel came to the same unanimous conclusion.

Several judicial ethics experts have confirmed that Judge Alito did nothing wrong by participating in this case. His decision to recuse himself went beyond either legal or ethical requirements. The record should reflect those facts.


U.S. Senator (R-Utah)