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The Stoler Report

November 15, 2005 Edition > Section:  National

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Roe v. Wade an Issue Ahead of Alito Hearing

By BRIAN MCGUIRE - Staff Reporter of the Sun
November 15, 2005

WASHINGTON - Supreme Court nominee Samuel Alito's rejection of a constitutional right to abortion on a 1985 job application may not harm him as it would have previous nominees. Consensus is growing among a group of liberal law professors who advise Democrats in the Senate on judicial confirmations that Roe v. Wade is on shaky legal ground.

According to records released yesterday by the National Archives, Judge Alito stated in a job application for a top Justice Department position that it was an "honor and a source of personal satisfaction" for him to advance legal positions while working in the solicitor general's office during President Reagan's first term. Judge Alito argued then against racial and ethnic quotas and said that "the Constitution does not protect a right to abortion."

Democratic senators saw in the document a point on which to question Judge Alito at his January confirmation hearing. Chief Justice Roberts, whose personal views on abortion were not known to committee members during his September confirmation hearing, avoided broaching the issue directly by saying that the policies he defended on behalf of the Reagan administration were not necessarily his own.

"Past nominees have said they could not discuss these issues for fear of creating a perception of bias," Senator Schumer, a Democrat of New York who sits on the Judiciary Committee, said yesterday in a statement. "Here, unfortunately, the memo itself creates the perception of bias and it will be crucial for this nominee to address the issue head-on."

But if recent statements of several leading liberal law professors and the Republican chairman of the Judiciary Committee are any indication, Judge Alito's personal views on Roe v. Wade are less likely to decrease his chances of confirmation the way that similar views of a failed Supreme Court nominee, Robert Bork, hurt him.

The committee's chairman, Senator Specter, of Pennsylvania, was the lone Republican to vote against Judge Bork in committee. But Mr. Specter's recent comments about Judge Alito suggest that opposition to Roe v. Wade may no longer be as important to him as a nominee's views on whether and when a precedent like Roe v. Wade may be overturned.

"There's more to a woman's right to choose than how you feel about it personally," Mr. Specter told reporters the day Judge Alito's nomination was announced.

Two liberal law professors at the University of Chicago made a similar point over the weekend at the annual conference of the conservative Federalist Society. A leading adviser to Democratic senators, Cass Sunstein, told a crowd of hundreds of conservative lawyers that the question of overturning Roe v.Wade is "very much on the table." He reiterated the view yesterday in response to Judge Alito's 1985 job application.

"I won't make a huge deal on particular comments or even Roe by itself," Mr. Sunstein said in an e-mail to The New York Sun. "The whole process shouldn't turn on the question."

Another leading adviser to Democrats in the Senate from the University of Chicago, David Strauss, told a crowd at the same conference that Roe v. Wade is "fragile" as a precedent. Mr. Strauss testified against Chief Justice Roberts. Mr. Sunstein said the decision has been contentious from the start and that, unlike other disruptive landmark cases, was never absorbed smoothly by society.

"What I think is that it just doesn't have the stable status of Brown or Miranda because it's been under internal and external assault pretty much from the beginning," Mr. Cass said. "As a constitutional matter, I think Roe was way overreached. I wouldn't vote to overturn it myself, but that's because I think it's good to preserve precedent in general, and the country has sufficiently relied on it that it should not be overruled."

In a sign that Democratic senators and liberal activist groups are paying attention to Messrs. Sunstein and Strauss, many are focusing less on the abortion records of conservative nominees. The ranking Democrat on the Judiciary Committee, Senator Leahy, of Vermont, did not mention abortion in the statement he issued about Judge Alito's job application. He focused instead on the nominee's pride in opposing racial quotas.

"I myself and a lot of other people draw a distinction between someone's personal political views and someone's views about the law," the legal director for the liberal activist group Alliance for Justice, Seth Rosenthal, said. "Here he is expressing his views on the law, and he's basically saying he disagrees with some significant aspects of modern constitutional jurisprudence. That gives you much more a window on how he will vote as a judge."

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