Judge Samuel A. Alito Jr., President Bush’s Supreme Court nominee, wrote that “the Constitution does not protect a right to an abortion” in a 1985 document obtained by The Washington Times.
“I personally believe very strongly” in this legal position, Mr. Alito wrote on his application to become deputy assistant to Attorney General Edwin I. Meese III.
The document, which is likely to inflame liberals who oppose Judge Alito’s nomination to the Supreme Court, is among many that the White House will release today from the Ronald Reagan Presidential Library.
In direct, unambiguous language, the young career lawyer who served as assistant to Solicitor General Rex E. Lee, demonstrated his conservative bona fides as he sought to become a political appointee in the Reagan administration.
“I am and always have been a conservative,” he wrote in an attachment to the noncareer appointment form that he sent to the Presidential Personnel Office. “I am a lifelong registered Republican.”
But his statements against abortion and affirmative action might cause him headaches from Democrats and liberals as he prepares for confirmation hearings before the Senate Judiciary Committee, scheduled for January.
“It has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan’s administration and to help to advance legal positions in which I personally believe very strongly,” he wrote.
“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.”
A leading Republican involved in the nomination process insisted that this does not prove Judge Alito, if confirmed to the Supreme Court, will overturn Roe v. Wade, the landmark 1973 Supreme Court ruling that made abortion a constitutional right.
“No, it proves no such thing,” said the Republican, who spoke on the condition of anonymity. “In fact, if you look at some of the quotes of his former law clerks, they don’t believe that he’ll overturn Roe v. Wade.”
Judge Alito sided with abortion proponents in three of four rulings during his 15 years as a judge on the 3rd U.S. Circuit Court of Appeals in Philadelphia, usually based on existing law and technical legal issues rather than the right to abortion itself.
“The issue is not Judge Alito’s political views during the Reagan administration 20 years ago,” the Republican official said. “It’s his 15 years of jurisprudence, which can be evaluated in hundreds of opinions. And in none of those opinions is it evident what his political philosophy is.
“Ruth Bader Ginsburg had a long history of advocacy on behalf of liberal causes, but she was evaluated on her 13-year record as a federal judge and her jurisprudence, not her belief that there was a constitutional right to prostitution or polygamy.”
Although Judge Alito’s conservatism has not been particularly evident in his legal rulings, it was abundantly clear in his job application 20 years ago.
“I believe very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values,” he wrote.
“In the field of law, I disagree strenuously with the usurpation by the judiciary of decision-making authority that should be exercised by the branches of government responsible to the electorate,” he added.
The document also provides the clearest picture to date of Mr. Alito’s intellectual development as a conservative.
“When I first became interested in government and politics during the 1960s, the greatest influences on my views were the writings of William F. Buckley Jr., the National Review, and Barry Goldwater’s 1964 campaign,” he said. “In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment.”
Republicans are relishing the opportunity to defend Judge Alito’s support for judicial restraint, saying it puts him squarely in the majority of American public opinion.
As evidence, they pointed to public outrage over a 2002 ruling by the 9th U.S. Circuit Court of Appeals in San Francisco that said the phrase “under God” in the Pledge of Allegiance was unconstitutional. More recently, the Supreme Court has ruled that government can seize property and give it to a private party for the sake of the “public good.” Other Supreme Court rulings have cited international law.
“We’re delighted to have a debate over judicial philosophy and the proper role of courts in America,” a Republican strategist said. “That’s a debate the Republican Party wins every time.”
Republicans also pointed out that Judge Alito’s devotion to Reagan administration policy was reminiscent of those of Supreme Court Chief Justice John G. Roberts Jr., who also served in the Reagan administration and was confirmed in September by all Republicans and half the Democrats in the Senate.
“The notion that working for the Reagan administration is a disqualifier for serving on the Supreme Court was decisively refuted by 78 votes earlier in the summer when John Roberts was confirmed,” said the official close to the Alito nomination process.