- The Washington Times - Tuesday, November 15, 2005

Liberals said yesterday that Supreme Court nominee Judge Samuel A. Alito Jr.’s 1985 claim that “the Constitution does not protect a right to an abortion” proves that he would try to outlaw the practice.

“He opposes a woman’s constitutional right to reproductive freedom,” said Ralph G. Neas, president of the liberal People For the American Way.

Mr. Neas cited a document, first reported in The Washington Times yesterday, in which Judge Alito said, “I personally believe very strongly” that no right to an abortion can be found in the Constitution. The document was part of a job application to become deputy assistant to Attorney General Edwin I. Meese III.

Democrats on Capitol Hill also reacted strongly, with Sen. Edward M. Kennedy of Massachusetts saying the “extreme statements … are deeply troubling.”

“Judge Alito was clearly trying to pass a litmus test to get a promotion,” Mr. Kennedy said. “By his own admission, he was pledging his allegiance against established Supreme Court decisions on … a woman’s constitutional right to privacy.”

One Judiciary Committee liberal said the memo means Democrats should not accept refusals to answer hypothetical questions, a strategy used by nominees to deflect questions on abortion since the defeat of Judge Robert H. Bork, a Reagan nominee to the Supreme Court.

“Past nominees have said they could not discuss these issues for fear of creating a perception of bias,” said Sen. Charles E. Schumer, New York Democrat. “Here, unfortunately, the memo itself creates the perception of bias, and it will be crucial for this nominee to address the issue head-on.”

Sen. Arlen Specter, Pennsylvania Republican and Judiciary Committee chairman, partially agreed, saying that although senators should not “ask him head-on” about whether he would overturn Roe v. Wade, the 1973 decision that made abortion a constitutional right, Judge Alito can expect closer questioning on the history of abortion jurisprudence.

“I think that it is more reason to question him closely at the hearing as to what impact the 38 cases [on abortion] have had since Roe. He made that application in 1985, 12 years after Roe, and a lot has happened since then,” Mr. Specter said.

Republican supporters of Judge Alito said the nominee’s sentiments were no different than those of another young lawyer who served in the Reagan administration, John G. Roberts Jr. In September, the Senate voted 78-22 to confirm him as chief justice.

But liberals said documents from that era show a crucial distinction between the two men when it came to the issue of abortion.

“Unlike Chief Justice John Roberts, Alito says these are his own strong personal views and not just those of the administration he was working for,” Mr. Neas said.

Karen Pearl, interim president of Planned Parenthood Federation of America Inc., added, “This document shows Judge Alito’s judicial philosophy is far more dangerous to the health and safety of American women than the public may have thought.”

Conservatives countered that even many liberal legal scholars share Judge Alito’s doubts about the constitutionality of Roe vs. Wade.

“Judge Alito’s statement in 1985 reflects a legal view that has been widely held among judges, lawyers, and legal scholars from across the political spectrum, who have widely divergent views on the proper abortion policy,” said Wendy E. Long, counsel to the Judicial Confirmation Network.

The office of Sen. John Cornyn, Texas Republican, distributed to reporters a list of quotes criticizing Roe as bad law or poor reasoning from such liberal icons as Supreme Court Justice Ruth Bader Ginsburg, Harvard law professors Alan Dershowitz and Laurence Tribe and New Republic legal writer Jeffrey Rosen.

Steve Schmidt, who is leading the White House effort to secure Judge Alito’s confirmation, said the candidate’s political views have not manifested themselves in his rulings as a judge on the 3rd U.S. Circuit Court of Appeals.

“Judge Alito has served on the federal bench for more than 15 years, and his record shows a clear pattern of modesty, respect for precedent and judicial restraint,” he said.

Mr. Schmidt added that Judge Alito is not nearly as conservative as some Supreme Court justices are liberal.

“Justice Ruth Bader Ginsburg had served as general counsel of the [American Civil Liberties Union] and had advocated liberal political positions, including the ideas that the age of consent should be 12, there was a right to prostitution and polygamy in the Constitution and Mother’s Day should be abolished,” he said.

Abortion was not the only issue of concern for liberals who read about Judge Alito’s 1985 job application in the Times.

Judge Alito went on to say that “racial and ethnic quotas should not be allowed” and that he strongly favors “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.”

Mr. Neas said this proves the nominee’s “fervent allegiance to virtually every pet cause of the radical right” and “underscores our concern that he would vote to turn back the clock on decades of judicial precedent protecting privacy, equal opportunity, religious freedom, and so much more.”

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