In '85, Alito `strongly' disagreed with Roe


WASHINGTON -- Supreme Court nominee Samuel A. Alito Jr. wrote in 1985 that he "very strongly" believed the Constitution "does not protect a right to an abortion," and he said he was proud of his work as a lawyer in the Reagan administration arguing against the position enshrined in the landmark decision Roe v. Wade.

Alito made the comments in an application for a job as deputy assistant attorney general, when asked about his "philosophical commitment" to Reagan administration policies. He also staked out conservative positions opposing racial and ethnic quotas and said he disagreed with Supreme Court decisions that kept a high wall between church and state, as well as those that gave criminal defendants greater procedural protections from police.

Overall, the application portrays a young, ambitious conservative - at the time, he was an assistant to the solicitor general - but Alito's comments on abortion were most explosive, and they instantly make his confirmation battle fiercer. One of the biggest questions posed by the addition of two new justices within a few months of each other will be the future of abortion rights and whether the court will ultimately overturn Roe.

That issue has taken center stage in the battle over President Bush's nominees to the high court, consuming meetings with senators and, in the case of the recently confirmed Chief Justice John G. Roberts Jr., a good part of his hearings before the Senate Judiciary Committee.

Alito had been a subject of heightened scrutiny because Bush nominated him to replace Justice Sandra Day O'Connor, who provided a critical vote to uphold Roe and sided with more-liberal justices to strike down restrictions on abortion. He also wrote, as a federal appeals court judge, a 1991 dissent in favor of a Pennsylvania law that required women to notify their husbands before getting an abortion.

In private visits with senators, Alito has said he respects the precedent set by Roe but, like previous nominees, he has declined to take a direct position on the case, which asserted that an implied right to privacy in the Constitution guarantees a woman's right to an abortion. Sen. Charles E. Schumer of New York and other Democrats said yesterday that in light of the newly revealed document, they expect Alito to be more open about his views than previous nominees.

The application surfaced as conservatives were promoting a never-before-seen 1970 draft opinion by prominent federal appeals Judge Henry Friendly that firmly rejected a constitutional right to abortion, and that the conservatives said could change the terms of the abortion debate.

Friendly, one of the nation's leading legal thinkers, who died in 1986, was a mentor to Roberts, his former clerk. Friendly, Roberts' friends and colleagues said, was the leading influence on Roberts' legal analysis and writing - even more so than his other former boss, Chief Justice William H. Rehnquist. In court papers and, later, in his appeals court opinions, Roberts often referred to Friendly's writings on the law.

Federal appeals Judge A. Raymond Randolph presented Friendly's previously unknown opinion in a speech Friday at the annual convention of the Federalist Society, a conservative lawyers' group. The opinion, concerning the constitutionality of a New York abortion law, was never published because the state Legislature changed the law in the middle of the case.

Randolph, who was clerking for Friendly at the time, retained a copy but kept it out of public view for 35 years. In the speech, Randolph read lengthy excerpts of the opinion, which he said "have such an important bearing on the Supreme Court's continuing struggle with the problems he identified so long ago."

In the opinion, Friendly rejected the idea that there was a right to privacy enshrined in the Constitution that would prohibit legislatures from passing abortion regulations, and he argued that the issue should be up to state legislatures, not judges.

Friendly also forecast a litany of problems if courts were to referee abortion debates. "The decision what to do about abortion is for the elected representatives of the people, not for three, or even nine, appointed judges," Friendly wrote in the draft opinion.

Conservatives said the Friendly opinion provides an important framework for discussing legal opposition to Roe. They hope some of the thinking in the draft will be seized upon by the newly reconstituted Supreme Court as it re-examines the abortion issue.

In the document released yesterday, Alito did not detail why he believed the Constitution does not protect the right to an abortion, and White House spokeswoman Dana Perino emphasized that it does not reveal how Alito would approach the issue if confirmed.

"He's been on the bench more than 15 years and has a record that shows a clear pattern of respect for precedent and judicial restraint," Perino said.

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