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Heightened Interest in Alito’s Views on Abortion as Hearings Approach

Dec 31, 2005 | 12-December 2005 NRL News

By Dave Anduskso

With Senate Judiciary Committee hearings on the nomination of Federal Appeals Court Judge Samuel Alito to the Supreme Court set to begin January 9, interest in the abortion issue has been heightened by a memo he wrote in 1985 as a Justice Department lawyer in the Reagan Administration and a job application submitted later the same year. Coincidentally, the documents became public in reverse order from when they were actually written.

Alito submitted the job application in November 1985 when he was working in the solicitor general’s office and seeking a post as deputy assistant attorney general. Referring to the Supreme Court case of Thornburgh v. American College of Obstetricians and Gynecologists, Alito wrote of having helped ”to advance legal positions in which I personally believe very strongly” while in the solicitor general’s office.

He went on to say, ”I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion.”

The application was released November 14 by the Ronald Reagan Presidential Library.

As part of the confirmation process, Alito met with pro-abortion Senate Judiciary Committee member Sen. Dianne Feinstein (D-Ca.). She asked about it. “He said: ‘I was an advocate seeking a job. It was a political job, and that was 1985,'” Feinstein told reporters. She said she believed his response to be ”absolutely truthful.”

Pro-abortion Sen. Ted Kennedy (D-Mass.) was more skeptical. ”I asked him, ‘Why shouldn’t we consider that the answers that you’re giving today are an application for another job?'” Kennedy told reporters. Kennedy declined to say how Alito responded.
Subsequently, a 17-page document written in May 1985–six months earlier–was released by the National Archives on the day the Supreme Court heard Ayotte v. Planned Parenthood. As an assistant to the solicitor general Alito argued against a “frontal assault” on Roe v. Wade in the Thornburgh case.

“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 wrote. Referring to the provisions of the Pennsylvania statute, he argued that the brief should say that they “are eminently reasonable and legitimate and would be upheld without a moment’s hesitation in other contexts.”

“Our point” in the brief would be that “even after Akron, abortion is not unregulable.”

This approach, Alito wrote, “has most of the advantage of a brief devoted to the overruling of Roe v. Wade: it makes our position clear, does not even tacitly concede Roe’s legitimacy, and signals that we regard the question as alive and open.”
The Reagan Administration ultimately decided to ask the Court to use Thornburgh to reverse Roe, which it chose not to do.
Alito’s memo was part of 336 pages of documents released by the National Archives November 30.

According to the Washington Post, pro-abortion Judiciary Committee member Sen. Charles E. Schumer (D-N.Y.) called the memo “stunning,” saying it “cast serious doubt on whether Judge Alito can be at all objective on the right to privacy and a women’s right to choose.” Added pro-abortion Sen. Kennedy, the documents “appear to be a clear sign that he passes the right’s litmus test with flying colors,” the Post reported.

White House spokesman Steve Schmidt said that Alito has voted both for and against restrictions on abortion during the past 15 years that Alito has been a federal appeals court judge. “Any attempt by opponents of his nomination to suggest that the memo signals how he would rule as a Supreme Court justice on any issue is just silly,” Schmidt told the Post.