Washington – As a lawyer in the Reagan Justice Department, Supreme Court nominee Samuel Alito played a leading role in devising legal strategy to overturn the landmark abortion- rights case Roe vs. Wade, documents disclosed Wednesday show.
Alito argued in a 1985 memorandum to the administration’s solicitor general that two pending Supreme Court cases were an “opportunity to advance the goals of overruling Roe v. Wade and, in the meantime, of mitigating its effects.”
And in a strongly worded 17-page legal analysis, Alito recommended advancing the administration’s ultimate case against Roe by defending state regulations requiring doctors to provide women seeking abortions with information about fetal development, the risks and “unforeseen detrimental effects” of the procedure, and the availability of adoption services or paternal child support.
Although the information might cause “emotional distress, anxiety, guilt and in some cases physical pain,” Alito wrote, such results “are part of the responsibility of moral choice,” comparable to the feelings of “a legislator voting on abortion legislation, a judge or juror pronouncing a sentence of death or imprisonment,” or “a military officer commanding a mission he knows will cost lives.”
The memorandum helps substantiate Alito’s reference in a recently disclosed Reagan administration job application from the same year.
In that application, Alito makes reference to his pride at contributing to efforts to overturn the constitutional right to abortion. The memorandum also illustrates the formative role Alito played in devising the administration’s legal strategy opposing abortion rights.
The Reagan administration’s solicitor general, Charles Fried, sent copies of Alito’s memorandum to several others in the Justice Department for discussion.
“I need hardly say how sensitive this material is, and ask that it have no wider circulation,” Fried wrote on the cover sheet.
When the administration weighed in on one of the cases, Thornburgh vs. American College of Obstetricians and Gynecologists, Fried incorporated Alito’s arguments in the government’s brief but also added a more direct attack on Roe. Alito’s name does not appear on the brief.
In his analysis of the cases, Alito repeatedly called the lower courts’ reasons for overturning the abortion regulations “incredible,” “remarkable” and “extraordinary.” He suggested that “many physicians, including those operating high-volume abortion clinics, have a financial interest in encouraging women to have abortions” and that such doctors are more worried about “an IRS agent investigating tax shelters” than about criminal prosecution for “an abortion- related offense.”
And in a three-page proposed introduction for a brief, he argued that “what is clear is that so long as the court adheres to the several doctrines announced by Roe v. Wade, the difficulties and conflicts illustrated by these cases will continue to recur.”
Coming now, as the Supreme Court heard its first abortion- rights case in five years, the disclosure has assured that the subject will remain at the center of the debate over Alito’s nomination, in part because he would succeed Justice Sandra Day O’Connor, the swing vote in many of such cases.
In addition to galvanizing the opposition of many liberal Democrats, the disclosure of the memorandum ratchets up the pressure on the handful of Republican Senators who support abortion rights. Several, including Sens. Susan Collins and Olympia Snowe, both of Maine, and Sen. Lincoln Chafee, of Rhode Island, have said they would oppose a nominee committed to overturning Roe vs. Wade.
Alito, who sits on the 3rd Circuit U.S. Court of Appeals, has told senators that if confirmed to the Supreme Court, he will weigh the value of upholding the abortion-rights precedents even if he disagrees with the original decisions.
He has stopped short, however, of disclosing how he would vote.
But Senate Democrats said Wednesday that the memorandum’s arguments and language suggested that Alito had already prejudged the issues.
“This new information heightens concern about Judge Alito’s views regarding ‘settled law’ and his eagerness to engage in activism to change a law with which he disagrees,” Sen. Patrick J. Leahy, D-Vt., the ranking Democrat on the Judiciary Committee, said in a statement.
But Steve Schmidt, a spokesman for the White House, said suggestions that the memorandum indicated how Alito might rule from the bench “cross the border into silly land.” Alito wrote the memorandum as a lawyer “giving tactical advice” to his client, the Reagan administration, Schmidt said.
When interpreting precedent on the federal appeals court Alito had voted both to uphold and to strike down abortion restrictions.
When the Thornburgh case reached the Supreme Court, Schmidt noted, O’Connor wrote a dissenting opinion that also questioned the lower court decisions. The majority opinion, written by retired Justice Harry Blackmun, upheld the lower court decisions.
In a statement, Sen. Arlen Specter, R-Pa., a Republican supporter of abortion rights who is chairman of the Judiciary Committee, said he held out the possibility that subsequent precedents might alter Alito’s view of the issues. “Many times the Supreme Court has decided the issue,” Specter said, singling out the 1992 case of Planned Parenthood v. Casey.
But Sen. Charles E. Schumer, D-N.Y., on the Judiciary Committee, said, “Maybe at the hearings he can dispel this, but the more you learn the more he seems to have something of an agenda.” Alito, for his part, also turned in his answers Wednesday to a Senate judicial questionnaire. In response to a query about “judicial activism,” Alito argued that the Supreme Court has a special responsibility for “self-questioning” because neither of the elected branches of government can provide a check on its role in interpreting the law.
“Judges must be appropriately modest in their estimation of their own abilities; they must respect the judgments reached by their predecessors; and they must be sensibly cautious about the scope of their decisions,” Alito wrote. “And judges should do all these things without shirking their duty to say what the law is and to carry out their proper role with energy and independence.” Listing his memberships in clubs or other organizations, Alito wrote that recent disclosures reflected that in the mid-1980s he belonged to Concerned Alumni of Princeton, a group that initially opposed the admission of women and later opposed affirmative action at the school. But he added, “I have no recollection of being a member, of attending meetings, or otherwise participating in the activities of the group.” Alito also listed the cases from which he had recused himself as a federal appeals court judge, including many involving the mutual fund company Vanguard. During his 1990 hearings for confirmation to the 3rd Circuit, Alito told the Senate Judiciary Committee he would recuse himself from any cases involving Vanguard, a mutual fund company that holds some of his investments.
In 2002, Alito sat in judgment of a case involving Vanguard and stepped aside only after a party to the case objected; Democrats have questioned his initial explanation that a computer glitch accounted for the lapse. He later sent Specter a letter arguing that his initial pledge covered only his first years on the court and noting that ethics guidelines did not require him to recuse himself from a case involving such a fund company. His answers to his questionnaire, however, indicate that he continued to recuse himself from cases involving Vanguard throughout his time on the court.
Democrats seized on Alito’s 1985 memorandum about the abortion cases to argue that the administration should disclose more documents from his work in the Reagan administration solicitor general’s office. The Bush administration has so far maintained that disclosing such documents would compromise the confidentiality of White House deliberations.
Schmidt, the White House spokesman, said the administration was not changing that policy. He said that Alito’s memorandum to the solicitor general that was disclosed Wednesday had ended up in the files of other Justice Department officials and been transferred to the National Archives during the Clinton administration.