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Alito’s Remarks on Roe May Not Be Fighting Words

With the recent release of two memos that Samuel A. Alito Jr. wrote during the Reagan administration, many Democrats believe they have found a smoking gun demonstrating his hostility to Roe vs. Wade, the 1973 Supreme Court decision guaranteeing the right to abortion.

In the two documents -- one an administration job application, the other a Justice Department legal memo -- Alito expressed a skepticism about Roe that liberal critics suspected, but could not prove, was also held by GOP court nominees Clarence Thomas and John G. Roberts Jr.

“It is difficult to imagine stronger evidence of a nominee’s legal views on Roe v. Wade” than these memos, said Dawn Johnsen, a professor of constitutional law at Indiana University and former legal director at NARAL Pro-Choice America.

But it’s still not clear these disclosures will seriously threaten Alito’s confirmation. And if they do not, both sides might need to rethink basic assumptions about the politics of the Supreme Court.

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Ever since the Senate rejected President Reagan’s choice of Robert H. Bork in 1987, presidents from both parties have mostly avoided high court nominees with a pointed ideological profile and clearly defined record. The assumption has been that nominees with sharp edges -- especially on abortion -- would provoke too difficult a fight.

Alito will now test that proposition. No one questions his competence, but the two documents identify him as a Roe critic more clearly than any GOP Supreme Court nominee since Bork (who flatly declared the ruling “unconstitutional”).

If this ammunition allows opponents to stop Alito -- either by a majority vote or a filibuster -- it will surely push future presidents back toward stealth nominees with limited public records. But if opponents can’t generate full-scale resistance to Alito -- at a time when nearly two-thirds of Americans tell pollsters they don’t want Roe overturned -- Bush and his successors may conclude they can risk more ideologically aggressive nominees, so long as the public considers them qualified.

Alito described his views on Roe -- at least his views 20 years ago -- in a 1985 job application to Atty. Gen. Edwin M. Meese III. He wrote that he was “particularly proud” of his contributions to Reagan administration court arguments that the “Constitution does not protect a right to an abortion.”

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That same year, as an assistant solicitor general, he urged the Justice Department to defend incremental state restrictions on abortion as part of a long-term strategy “to advance ... the eventual overruling of Roe v. Wade, and in the meantime, of mitigating its effects.”

By contrast, when Reagan nominated Anthony M. Kennedy to the Supreme Court in 1987, lawyers could “find nothing in his record to suggest whether or not he favors a legal right to abortion,” The Times reported then. When George H.W. Bush nominated David H. Souter in 1990, the only clue he left behind was a brief he signed as New Hampshire attorney general opposing public financing for abortion. Both men eventually voted to uphold Roe.

The strongest evidence Democrats could find about Thomas’ view on Roe was his praise for an article by another conservative who said a fetus possessed “an inalienable right to life.” But at his 1991 confirmation hearings, Thomas disavowed the article and insisted he had never discussed Roe with anyone.

Roberts co-authored a 1990 Justice Department brief arguing that Roe was wrongly decided, but at his confirmation hearing this year he brushed that aside as representing not his personal views but the preferences of the elder Bush’s administration.

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Forced into a debate that each of those nominees circumvented, Alito’s supporters have raised three arguments.

One is the Roberts defense: Alito was only following his client’s directions. That seems less persuasive than in Roberts’ case. In the Justice Department memo, Alito wasn’t advocating for his client; he was advocating an anti-Roe strategy to his client. And in the job application he clearly expresses personal pride about his work on antiabortion cases.

The second argument from Alito’s defenders is tougher to dismiss. Whatever his inclinations as an advocate, they maintain, his judicial record demonstrates restraint. As an appellate court judge, he upheld one state law restricting abortion and overturned two others. “As a judge, Alito has amply demonstrated ... that he will neutrally apply the law,” Edward Whelan, president of the conservative Ethics and Public Policy Center, wrote recently.

Opponents fire back that Alito was cautious in these decisions only because, as a lower court judge, he was bound to follow Supreme Court precedents.

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To that, Alito’s defenders construct a final line of defense: Even if he believes Roe was wrongly decided, his respect for precedent might lead him to uphold it anyway, especially after the Supreme Court reaffirmed the ruling in its 1992 Casey decision. That’s what Senate Judiciary Committee Chairman Arlen Specter (R-Pa.) recently suggested.

Specter may be right. Or Johnsen may be correct when she predicts that on the Supreme Court, Alito would follow the strategy he recommended in 1985: steadily retrenching legal abortion through incremental restrictions. Neither side can be sure, but the 1985 memos provide critics their strongest basis since Bork to predict the nominee’s likely direction.

If that’s still insufficient to generate substantial opposition from senators who support Roe, Bush and his GOP successors might understandably conclude that overt opposition to legalized abortion isn’t as dangerous for court nominees as they feared. In that way, the Alito memos may raise the stakes in this struggle more for the judge’s opponents than for Bush. If the left can’t win this fight, they can probably expect another one like it the next time a Republican president fills a vacancy on the high court.

Ronald Brownstein’s column appears every Monday. See current and past Brownstein columns on The Times’ website at latimes.com/brownstein.

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