Are Republicans Nervous About Alito Memo?

With Democrats squawking about Judge Sam Alito’s 1985 memo regarding Thornburgh v. American College of Obstetricians & Gynecologists, it appears some Republicans are now getting cold feet, too.

Senate Judiciary Chairman Arlen Specter (R.-Pa.) has vowed to make abortion the first issue he’ll explore with Alito at next month’s hearings. “I want to hear what he has to say, and I want to hear how he says it,” Specter told the Washington Post about Alito’s views on Roe v. Wade.

But perhaps most telling is a statement came from Wendy Long, counsel to the Judicial Confirmation Network, an ardent defender of Alito. After reading Long’s memo, I sensed a bit of nervousness. Why else would she go to such great lengths to compare him to Justice Sandra Day O’Connor?

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. The administration ultimately did not follow some of that advice: it called for the overturning of Roe, whereas Judge Alito had urged that the administration not call for Roe’s reversal.

Judge Alito expressed in the memo a reasoned position that is the same as Justice Sandra Day O’Connor expressed in her dissent in Thornburgh in 1986 and her opinion in Casey in 1992: that laws requiring women to be given relevant, accurate, factual information to enable them to make an informed choice about abortion are consistent with Roe’s acknowledgement of what the Court called ‘an important interest in potential life’ as well as with reasonable laws that protect women and girls. Judge Alito’s and Justice O’Connor’s explanations of the law clarify that the radical liberal agenda of utterly unregulated abortion on demand, for all nine months of pregnancy, for any reason, is not mandated by the Constitution or by Roe.

In any event, the tactical litigation advice that Judge Alito gave his client as a lawyer does not indicate how he will treat any case that comes before him as a judge, or a Justice of the Supreme Court. What we do know on that score is this: for 15 years on the federal Court of Appeals, Judge Alito has by all accounts been scrupulously fair and impartial, and he does not prejudge any case that comes before him. Litigants, law clerks, liberal law professors, and his fellow judges – with varying points of view on abortion and other issues – all say the same thing, that he brings no political agenda of any kind to the bench.


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