Alito urged strategy vs. Roe

Court nominee wrote memo while Reagan lawyer

December 01, 2005|By MAURA REYNOLDS AND RICHARD B. SCHMITT | MAURA REYNOLDS AND RICHARD B. SCHMITT,LOS ANGELES TIMES

WASHINGTON -- As a Reagan administration lawyer, Supreme Court nominee Samuel A. Alito Jr. argued forcefully against the high court's landmark Roe v. Wade decision decriminalizing abortion and laid out a strategy to overturn the decision.

In a lengthy 1985 memo, Alito, then an assistant solicitor general, urged the Reagan Justice Department to defend states seeking to put restrictions on the procedure, saying that the Supreme Court's rulings did not mean that "abortion is unregulable." In particular, he wrote, states should have the right to order doctors to inform patients about medical risks and alternatives to the procedure.

"If abortion is a woman's choice, as the Court has held, then surely the choice should be informed," Alito wrote.

Such state regulations, he continued, are "preferable to a frontal assault on Roe v. Wade" and could lead the court to reconsider Roe itself.

Alito's critics, including abortion rights advocates, swiftly denounced the memo, saying it shows the nominee helped lay the groundwork for an attack on abortion rights that continues to this day. Alito's defenders dismissed the import of the memo, saying he was a staff lawyer for a president who was an avowed opponent of abortion.

"The memo shows that Samuel Alito worked in the boiler room as one of the chief engineers of a multitiered strategy to reverse Roe v. Wade," said Nan Aron, president of the Alliance for Justice, a liberal legal advocacy group.

"This memo reflects tactical litigation advice that Judge Alito, writing 20 years ago as a deputy lawyer in the office of the solicitor general, gave to his client, the pro-life administration of President Ronald Reagan," said Wendy Long, counsel to the Judicial Confirmation Network, a conservative legal advocacy group.

The 17-page memo was among more than 300 pages of documents relating to Alito released yesterday by the National Archives under a request from the Senate, which will vote on his nomination in January.

The White House has refused to release documents from Alito's service in the solicitor general's office, arguing that they are privileged. However, the Roe memo and a second on use of unnecessary force by police were among documents sent to the archives in 1999 on which the Clinton administration waived privilege, and the White House had no authority to restrict their release.

"Internal [solicitor general] office documents are privileged, and you can see why if you look at the ones that are in here," a Justice official said, speaking on the condition of anonymity. "It can be detrimental to the government's ongoing ability to litigate certain issues."

In the second memo, written in May 1984, Alito criticized a federal court of appeals ruling that held that police officers in Memphis could be sued for using unnecessary force for shooting a 15-year-old burglary suspect who was attempting to flee a crime scene. Alito wrote that judges should defer to local authorities' judgment.

"All such rules are based upon difficult moral and philosophical choices and a balancing of values that is peculiarly suited for legislative rather than judicial resolution," he said.

Also yesterday, Alito sent the Senate Judiciary committee a more than 200-page response to a questionnaire asking for information on his qualifications and legal experience.

Among all the documents released, the Roe memo stood out for its strong views and language. It also appeared to offer a glimpse of Alito's personal views on one of the nation's most divisive social issues.

Alito critics pointed out that in a previously released application for a subsequent job in the Reagan administration, the nominee said he was "particularly proud" of his work in the solicitor general's office arguing "that the Constitution does not protect a right to an abortion."

But on the Roe memo, Bush administration officials insisted that Alito was only offering legal advice to his client and that the memo offers no clues about how he might rule on abortion cases as a judge. They pointed out that in four abortion-related cases he heard as a federal judge, Alito ruled once for the anti-abortion side and three times for the abortion rights side.

Steve Schmidt, a White House official, conceded that even if the memo reflects Alito's personal opinion, such views are "beside the point." "Are opponents of abortion saying that there is a litmus test, that anyone who holds a personal opinion is precluded from serving on the Supreme Court?" Schmidt asked.

But the top Democrat on the Senate Judiciary committee said the memo shows why senators want access to all documents Alito wrote while in the Reagan administration.

In his questionnaire, Alito provided detail about his financial holdings, including that he owns $161,000 of Exxon Mobil stock. Altogether, Alito estimated his net worth at $2.2 million, including $870,000 in real estate, $789,000 in investments, $244,000 in cash and $60,000 in government securities.

According to previous financial disclosure documents reported last month by the Associated Press, the Exxon Mobil stock was a bequest from a family friend.

Maura Reynolds and Richard B. Schmitt write for the Los Angeles Times.

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