WASHINGTON (BP)–The release of a 20-year-old memorandum by Samuel Alito outlining a strategy to reverse the U.S. Supreme Court’s legalization of abortion has elicited fresh attacks from Senate Democrats against his nomination to the high court.
The memo, which was written when Alito worked for the solicitor general in the Reagan Justice Department, urged an approach that avoided a “frontal assault” on the 1973 Roe v. Wade ruling but instead advanced “the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its” impact.
Alito called for the Justice Department to file friend-of-the-court briefs in two cases in which it would ask the court to uphold abortion regulations struck down by lower courts. The briefs should “make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether, and if so to what extent, that decision should be overruled.”
“If the court can be convinced to sustain these regulations,” he wrote, “it may have to adjust its standard of review” in abortion cases, he wrote to Solicitor General Charles Fried.
Such a strategy “has most of the advantages of a brief devoted to the overruling of Roe v. Wade: it makes our position clear, does not even tacitly concede Roe’s legitimacy, and signals that we regard the question as live and open,” Alito wrote in the 1985 memo.
Some abortion rights defenders in the Senate reacted sharply to the memo after its Nov. 30 release.
Sen. Charles Schumer, D.-N.Y., called the “language and strategic thinking” in the memo “stunning.”
“These latest revelations cast serious doubt on whether Judge Alito can be at all objective on the right to privacy and a woman’s right to choose,” Schumer said in a written statement.
Sen. Barbara Boxer, D.-Calif., said in a written release, “With Judge Alito, the more we know, the more disturbing it gets.”
Nancy Keenan, president of the abortion rights group NARAL Pro-Choice America, said in a written statement Alito’s memo demonstrates a “visceral opposition to Roe v. Wade.”
Alito told Senate Judiciary Committee Chairman Arlen Specter in a Dec. 2 meeting his personal position on abortion “would not be a factor” in any decisions on the high court, the Pennsylvania Republican said afterward, according to the Associated Press.
“He raised a sharp distinction, as he put it, between his role as an advocate and his role as a judge,” Specter said, AP reported.
The White House and a former Alito coworker at the Justice Department said the new nominee was following a policy advocated by President Reagan, who desired to reverse Roe. “The position had already been established,” said Charles Cooper, a former assistant attorney general, according to The Washington Post. “He was by no means suggesting the formulation of a policy.”
Family Research Council President Tony Perkins said in a written release the message of pro-choice advocates is: “[I]f you are pro-life on any level in the United States, pro-abortion forces will try to silence your views in the public square.”
According to AP, Specter said after the Dec. 2 meeting he does not think Alito’s nomination “is in trouble.”
Alito’s confirmation hearings are scheduled to begin Jan. 9 before the Judiciary Committee. The Senate leadership hopes to hold a confirmation vote Jan. 20.
Alito has served the last 15 years as a judge on the U.S. Third Circuit Court of Appeals.
The release of Alito’s memo followed by barely two weeks the announcement he had said in a 1985 application for an assistant attorney general’s position that he was proud of his contributions at the Justice Department in cases in which the federal government has contended “the Constitution does not protect a right to an abortion.” Alito received the position.
In a 64-page questionnaire for the Senate also released Nov. 30, Alito responded to a question about judicial activism by saying the federal courts “must always keep in mind that their proper sphere is circumscribed. … [J]udges must always be sensitive to the need to avoid unnecessary interference with the authority and competence of the political branches.”
Alito’s 17-page memo was among documents released by the National Archives.
In 1986, the Supreme Court rejected the arguments of the Justice Department in Thornburgh v. American College of Obstetricians and Gynecologists, one of the cases Alito discussed in his memo. The justices struck down a Pennsylvania law that required women seeking abortions to receive certain information before undergoing the procedure.
Associate Justice Sandra Day O’Connor dissented from that opinion but later became an important vote on the high court for abortion rights.
If Alito is confirmed, he will take over for O’Connor, who announced her retirement in July after 24 years as a justice but agreed to serve on the court until she is replaced.
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