Ignore the Man Behind That Memo

Judge Samuel Alito Jr.’s insistence that the Constitution does not protect abortion rights is not the only alarming aspect of a newly released memo he wrote in 1985. That statement strongly suggests that Judge Alito is far outside the legal mainstream and that senators should question him closely about it. They should be prepared to reject his nomination to the Supreme Court if he cannot put to rest the serious concerns that the memo, part of a job application, raises about his worthiness to join the court.

When Judge Alito applied for a job with the Justice Department under President Ronald Reagan, he submitted a Personal Qualifications Statement that outlined his approach to the law. That statement raises three major concerns:

First, he has extreme views on the law. Judge Alito said he was particularly proud of his work on cases that tried to establish that "the Constitution does not protect a right to an abortion." He did not merely oppose Roe v. Wade in the abstract - he worked to reverse it. He also noted his "disagreement with Warren Court decisions" in many important areas, including reapportionment. The reapportionment cases established the one-person-one-vote doctrine, which requires that Congressional and legislative districts include roughly equal numbers of people. They played a key role in making American democracy truly representative, and are almost uniformly respected by lawyers and scholars.

Second, Judge Alito does not respect precedent. Judicial nominees who appear extreme often claim that because they respect precedent, they will vote to reaffirm decisions they disagree with. When Justice Clarence Thomas, then a judge, was nominated for the Supreme Court, he told the Senate about his deep respect for precedent - and then immediately began voting to overturn important precedents when he joined the court. The Senate has specific reason to be skeptical about Judge Alito. Not only did he work to overturn Roe v. Wade, but he also said he had been inspired to go to law school by his opposition to Warren Court precedents - presumably by a desire to see them overturned.

Third, he is an ideologue. The White House has tried to present Judge Alito as an impartial judge without strong political views. But he said just the opposite in the 1985 statement. "I am and always have been a conservative," he wrote. He called himself a "life-long registered Republican" who contributed to "Republican candidates and conservative causes," including the National Conservative Political Action Committee, the super-PAC of the Reagan era. He strongly suggested that he would have been active in Republican politics if the law had not prohibited him, as a federal employee, from doing that.

Judge Alito is already trying to distance himself from the memo. He cannot say it was merely a lawyer’s representation of an employer’s views because it was undeniably a statement of his personal beliefs. He cannot call it an excess of youth because he was 35 when he wrote it. According to Senator Dianne Feinstein, the California Democrat, Judge Alito told her yesterday that when he had written it he had merely been "an advocate seeking a job."

This is not very credible because the statement is entirely consistent with his full career. On the bench, Judge Alito has voted to uphold extreme limits on abortion and on other important rights, like freedom from unreasonable searches and seizures.

Equally alarming is the notion that he fudged the truth to tell a potential employer what it wanted to hear. Senators should certainly keep this in mind when they try to decide whether to believe how he describes his views at his confirmation hearing.

http://www.nytimes.com/2005/11/16/opinion/16wed1.html?hp