- The Washington Times - Thursday, December 1, 2005

Supreme Court nominee Samuel A. Alito Jr. laid out a strategy 20 years ago for the “eventual overruling of Roe v. Wade,” according to a newly released document.

Judge Alito advised that “no one seriously believes that the Court is about to overrule Roe v. Wade,” according to a 17-page memo he wrote in 1985 to President Reagan’s solicitor general. “But the Court’s decision to review [subsequent abortion] cases nevertheless may be a positive sign.”

What follows is a strategy to “advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects.”

Judge Alito’s analysis as a Reagan administration lawyer was part of a batch of records released yesterday by the National Archives. Although his pro-life views were known, the documents shed light on his legal thinking about the right to abortion established by the Supreme Court’s 1973 Roe v. Wade decision.

Democrats called the memo “stunning” and his views “extreme.”



“This new document isn’t just a smoking gun,” declared Ralph G. Neas, president of the liberal People for the American Way. “It’s a smoking cannon.”

Republicans on Capitol Hill said the memo reveals only a lawyer working on behalf of his client. Anyway, they said, Judge Alito has told senators in private meetings that Roe has become more settled in the past 20 years and that “great respect” should be afforded such precedents.

“When he wrote this memo, Alito was a lawyer for the Reagan administration, which was clearly on the record opposing abortion, and was advising his client on the best litigation strategy to achieve its policy goals,” White House spokesman Stephen Schmidt said.

Mr. Schmidt noted that in his 15 years on the 3rd U.S. Circuit Court of Appeals, Judge Alito has voted both to strike down and uphold abortion restrictions depending on the law and precedent.

Senate Judiciary Committee Chairman Arlen Specter of Pennsylvania, a pro-choice Republican, said the nominee’s writings from 1985 will be “a central line of questioning” in hearings in January.

Pro-life advocates also pointed to Judge Alito’s answers — also released yesterday — to a Senate questionnaire in which the nominee said he remains committed to “judicial restraint,” a value conservatives say the Supreme Court shirked in Roe.

“But while the federal courts should act firmly and independently within their proper sphere, they must always keep in mind that their proper sphere is circumscribed,” he wrote in his questionnaire. “The ‘judicial Power’ is distinct from the ‘legislative Powers’ given to Congress and from ‘the executive Power,’ and the federal courts must engage in a constant process of self-discipline to ensure that they respect the limits of their authority.”

Democrats went further.

“The language and strategic thinking in the newly revealed memo is stunning,” said Sen. Charles E. Schumer, New York Democrat and Judiciary panel member. “These latest revelations cast serious doubt on whether Judge Alito can be at all objective on the right to privacy and a woman’s right to choose.”

In his 1985 memo, Judge Alito directed his most withering criticism at the Supreme Court for running far afield of legal thinking to protect abortion more absolutely than any other right. In particular, he cited a previous case in which the Reagan administration was involved regarding legislation dealing with abortion.

“The court rejected our argument, reaffirmed Roe v. Wade, and proceeded to slash — I am tempted to say reflexively — at the particular regulations before it,” he wrote. “For example, it is almost incredible that the court struck down an ordinance requiring the ‘humane and sanitary’ disposal of aborted fetuses, a provision designed ‘to preclude the mindless dumping of aborted fetuses onto garbage piles.’”

The court decided that “humane and sanitary” was “impermissibly vague,” Judge Alito wrote. That explanation flummoxed the young lawyer, because federal law required the “humane and sanitary” disposal of all sorts of refuse, including the remains of “excess wild free-roaming horses.”

He also said it was unreasonable that the high court prohibited legislatures from requiring doctors to warn patients of the risks associated with abortion while letting legislatures require doctors to warn patients of risks of many other medical procedures.

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