Supreme Court nominee Samuel Alito distanced himself from the views expressed in a memo where he argued strongly for women to be confronted with abortion as a moral issue and for eventually overturning the Roe v. Wade that nationalized abortion.
During a press conference on Friday, Senate Judiciary chairman Sen. Arlen Specter (R-Pa.) said Alito had told him that the views presented in a recent memo reflect his views as an advocate for the Reagan administration and that in his role as a judge he would not bring in his personal views.
Specter asked Alito about another document where the judge expressed that there was not constitutional right to an abortion.
Judge Alito commented about those matters to me and raised a sharp distinction, as he put it, between his role as an advocate and his role as a judge, said Specter. Rules forbid the high court nominee from speaking directly with the media.
With respect to Alito's personal views on abortion, Specter said that Alito told him "that is not a matter to be considered in the deliberation on a constitutional issue" and that "the judicial role is entirely different.
Regarding the second document, Specter said Alito told him that he was "functioning as an advocate," and "that it was the position of the Reagan administration to seek to overrule Roe, and it was his advice as an advocate not to have a head-on challenge to Roe but instead to seek to limit Roe in the Thornburgh case.
Reactions to the comments expressed by Alito in the documents have increased the partisan struggles that may be a preview of the upcoming nomination hearings in January.
Referring to a Senate 64-page questionnaire Alito had filled out for the judiciary committee, Sen. Charles Schumer (D-N.Y.) asked Alito in a letter why he had not explained about his involvement in abortion cases with the Reagan administration. Sen. Edward Kennedy (D-Mass.) also said a "credibility gap" was emerging between what Alito says about himself and the work he had actually done.
Despite the questions, it is not expected that Democratic Senators will work to delay the hearings by engaging in a filibuster, according to a spokeswoman for Senate Minority leader Harry Reid (D-NV).
Tony Perkins, President of the Family Research Council argued in an e-mail message to supporters that legal opinions criticizing Roe should not be used as a reason to oppose Alitos nomination, since such arguments come even from abortion supporters. He noted that Justice Ruth Bader Ginsburg characterized the decision as heavy-handed judicial intervention.
Roe, I believe, would have been more acceptable as a judicial decision if it had not gone beyond a ruling on the extreme statute before the court, wrote Ginsburg in the North Carolina Law review in 1985.
Heavy-handed judicial intervention was difficult to justify and appears to have provoked, not resolved, conflict.
Specter said his job as chairman was go "right down the middle and wait until the hearings were concluded in order to insure fair hearings were conducted. He said he didn't want a "reply of what happened to White House Counsel Harriet Miers, who was really sort of run out of town on a rail. Miers, whom Alito replaced as a nominee, withdrew her bid for the Justice position because she felt that demands by some senators to see certain White House documents would have compromised the independence of the Executive Branch of government. The documents in question were from 1985.
Alitos earlier document, which was made public in early November, was a job application for the office of deputy attorney general with the Reagan administration, where the then-35-year-old described himself as a lifelong conservative, who was particularly proud of the work he had done to oppose certain affirmative action and abortion. He also criticized the constitutional right to abortion.
In the second document released earlier this week, Alito, who was working as an attorney within the Reagan administration, wrote a strategy that it could take to mitigate the effectiveness that the Roe decision had on abortion. Part of his strategy included passing laws that would require doctors to give women information about abortion, framing the decision of whether to abort in a moral context, thereby increasing the pressure on the woman.
Alito argued in the memorandum that "Roe took from the state lawmakers the authority to make this choice and gave it to the pregnant woman. Does it not follow that the woman contemplating abortion should have at her disposal at least some of the same sort of information that we would want lawmakers to consider?
He later wrote that the approach "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..." while being "free of many of the disadvantages that would accompany a major effort to overturn Roe.