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Clues From Judge Alito’s Past

December 1, 2005 at 12:00 AM EDT
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RAY SUAREZ: While serving as assistant solicitor general in the Reagan administration, Samuel Alito outlined a strategy for overturning the landmark abortion rights decision, Roe versus Wade.

In a lengthy 1985 memo released by the National Archives yesterday, Alito urged the Justice Department to advocate convincing the Supreme Court to allow states to regulate abortion, arguing this would advance the goals of bringing about the eventual overruling of Roe V. Wade, and in the meantime, of mitigating its effects.

Alito did not recommend a frontal assault on the decision because, he wrote, “No one seriously believes the court is about to overrule Roe v. Wade.”

This memo release follows the recent disclosure of Alito’s application for a political post in the Reagan White House in 1985. On it Alito wrote, “The Constitution does not protect a right to an abortion.”

Abortion rights advocates have been swift to jump on these writings. Judiciary Committee Democrat Chuck Schumer:

SEN. CHARLES SCHUMER: I don’t think we’ve come by a nominee, for the Supreme Court, certainly, who has stated things so directly and boldly and even talked about a strategy as a way of overturning Roe v. Wade.

RAY SUAREZ: But some of Alito’s supporters say the 20-year-old documents reveal little about how Alito would rule on issues today.

Chuck Cooper worked with Alito in the Reagan Justice Department.

CHUCK COOPER: We can’t even draw certain inferences about what he believed in 1985 from what he wrote as an advocate, as a lawyer in a team of lawyers advancing the position of his client, the Reagan administration.

RAY SUAREZ: Alito’s supporters also point to the judge’s response to a Judiciary Committee questionnaire in which Alito reaffirmed a view of judicial restraint, writing: “The judges must respect the judgments reached by their predecessors and they must be sensibly cautious about the scope of their decisions.”

Still, Senate Judiciary Committee Chairman Arlen Specter said yesterday Alito’s statements from the memo and job application would be the lead question when he opens confirmation hearings on the judge’s nomination next month.

RAY SUAREZ: Joining us to discuss what we know about Judge Alito are two constitutional law scholars: Lillian BeVier at the University of Virginia School of Law; and Akhil Amar from Yale Law School.

Professor BeVier, what emerges from the hundreds of documents in this most recent release, a competent lawyer, a strong thinker?

LILLIAN BeVIER: A competent lawyer, a strong thinker, certainly. I think there’s very little that we can infer about how he’s going to approach Roe versus Wade or any other major precedent when he gets on the bench on the Supreme Court.

The job of a Supreme Court justice is just so very different from the job of a lawyer for the Justice Department or someone who is applying for a job with a particular administration.

Judge Alito, from all that we know about him, from his 15 years on the bench, is a very cautious very careful, a very respectful judge, and he, on the bench so far, has exhibited great respect for precedent.

RAY SUAREZ: Let me just jump in right there because these documents predate his time as a judge. Are you suggesting that they don’t really have that much value as a sight into who he is in 2005?

LILLIAN BeVIER: Well, you know what I’m inclined to think is what Judge Alito adheres to as a political matter is — he is a conservative person. He’s a conservative thinker. He’s also a conservative thinker about the role of the court and the role of judges.

And so I think to infer from his political positions what his views would be, what his decisions would be on the Supreme Court is just a great mistake. It’s a leap that is wrong to take, I think.

RAY SUAREZ: Professor Amar, what did you see in that recent release of documents?

AKHIL AMAR: Well, I didn’t hear all of what was just said so I hope I don’t repeat all of Professor BeVier’s points, which I’m sure were excellent.

But I saw a judge – excuse me — a lawyer who was quite a careful craftsman. He had an argument that the administration should respectfully put forth their views but not wave a red flag in front of the Supreme Court, to go slow, to proceed cautiously, to make clear they thought Roe went too far but to do so in a very careful, measured way.

RAY SUAREZ: Well, Professor BeVier also suggested that these weren’t very helpful in guiding anyone to an understanding of what kind of justice Samuel Alito would be, and she pointed to his more than a decade’s work on the bench, which is quite different from these memos as an advocate working inside the Reagan Justice Department.

AKHIL AMAR: And in a sense, neither is an absolute perfect predictor of what he will do as a Supreme Court justice because lower court judges are bound by precedent in ways that Supreme Court judges are much more free to change precedent.

So, we have lots of tea leaves, and we don’t have any definitive resolution. It is interesting, though, that on several issues, his opinions sound a little bit like Justice O’Connor’s actually. She thought that the early Roe versus Wade opinions went too far; so did he.

There’s another opinion — another memo that came out today about his involvement in a criminal procedure case involving police shooting at fleeing suspects, and his view in that case turned out to be very similar to Justice O’Connor’s also.

RAY SUAREZ: Well, a lot of the attention that this latest document release has gotten, Professor Amar, has gone to just the issue of abortion. Did it provide you any better understanding of just Judge Alito’s thinking on this question, but to see how he was providing intellectual ammunition, talking points to the Reagan Justice Department?

AKHIL AMAR: I came away from reading the Roe memo and the other materials that were released today with a lot of respect for Alito as a very careful lawyer and craftsman.

RAY SUAREZ: Professor BeVier, the same question, did Judge Alito show his hand in these days with the solicitor general’s office in his writings on Roe?

LILLIAN BeVIER: Well, I don’t think so, and I think — certainly not in terms of the way he would handle the issue today.

I think it’s important, you know, to look at part of that strategy that he was advocating as being a search for some kind of middle ground, rather than continuing to affirm or strengthen Roe versus Wade and abortion on demand.

I think Judge Alito was looking for ways to find a middle road between abortion on demand and no abortion rights whatsoever, and that that strategy, giving the states some leeway to make decisions at the margins, seems in many respects to make a lot of sense.

I think as a political matter, it’s the — it’s a strategy that a lot of people in the American public would prefer to have both the political branches and the court pursue.

RAY SUAREZ: Despite your own stated misgivings, Professor BeVier, about the value of these 20-year-old memos, Judge Alito himself in meetings with senators has tried to minimize their impact and dismiss them just as the writings of someone who was seeking a job, the writings of someone who was trying to gain favor inside a system and catch the attention of his superiors. Is that a reasonable explanation for strongly worded opinions of an earlier career?

LILLIAN BeVIER: Well, of course I don’t know just exactly what Judge Alito has said to the senators. Of course I think it’s a reasonable position. I think there are very few of us who could go back and look at everything we wrote 20 years ago on a job application or any other place and be wholly satisfied that it’s a clear picture of the person and the lawyer that we have become 20 years later.

So I think it’s perfectly reasonable to look at the memos, but I think that a lot of credence has to be given to the passage of time to the accrual of wisdom, and to the fact that Judge Alito is — and knows he is, applying, if you will, for a very different job from the job he was applying for at that time.

RAY SUAREZ: And indeed, Professor BeVier, he added in some of those conversations with senators, that he would prefer that they look at his opinions of the last 15 years instead of just those memos from his time at the Justice Department.

Let me turn to Professor Amar, same question. We saw the same thing when John Roberts was heading for his hearings, sort of neutralizing earlier writings, neutralizing earlier strongly worded opinions. What do you make of that?

AKHIL AMAR: Well, I don’t think that these earlier memos are a perfect predictor, but as I said before, I don’t think that lower court opinions are either, because you’re supposed to follow Supreme Court precedent as a judge on the Third Circuit, and you don’t always have to as a Supreme Court justice.

So it would be interesting if he at the confirmation process actually talked about his views today about certain things. He is not going to want to answer those questions, any more than then Judge, now Chief Justice Roberts wanted to answer those questions.

It might be a little harder for him to evade it because he’s been more specific on Roe versus Wade than anything that we have in Judge Roberts’ materials.

The other thing that’s quite interesting about his background is that he’s a former prosecutor, and he’ll be the first former prosecutor on the modern court, and I think he brings a certain sensibility about that that you see in some of this material also, how, perhaps, the Warren Court, and even the Berger Court went too far in protecting rights of guilty defendants at the expense of law enforcement interests, and you very much see that sensibility in this material, and I think in some of his Third Circuit opinions as well.

RAY SUAREZ: So are the documents that are being released from the Reagan years consistent with the things that Judge Alito has ruled upon when sitting at various levels of federal benches, Professor Amar?

AKHIL AMAR: Yes, I think you do see the same person at work; in a memo that was released even earlier, his 1985 job application to the Reagan administration, he described himself always having been a conservative. I think that’s who he is.

There’s nothing wrong with being a conservative. This president is a conservative; President Reagan was a conservative, and I think that’s what you’re getting here.

But what I didn’t know before I looked at this material is I think you’re getting someone who also has a real respect for facts, for tradition, for other institutions of government and not just for the courts, a certain sense of deference, and a certain care and craftsmanship that I thought was in these materials.

RAY SUAREZ: Professor BeVier, do you agree with that summation, if you will?

LILLIAN BeVIER: I do agree very much so. I think what we have here is a conservative in the ways that are appropriate to someone who is going to be a Supreme Court justice. He’s conservative in his approach to everything that he takes on.

He’s careful, he works diligently. He tries to be fair in everything that he’s done. I have never heard a single word of criticism about Judge Alito in terms of his fairness to individuals or the approach that he’s taken to people he’s worked with or cases he’s decided.

And I think that that’s an important ingredient in the evaluation of anything he’s written and any work that he’s done is the care and respect that he shows to the materials before him.

RAY SUAREZ: Professor BeVier, Professor Amar, thank you, both.

LILLIAN BeVIER: Thank you.

AKHIL AMAR: Thank you.