Alito's track record requires tough questioning
Appellate Judge Samuel A. Alito has begun conformation hearings before the Senate Judiciary Committee.
DEMOCRATS indicated in their initial statements in the confirmation hearing of federal appeals Judge Samuel A. Alito to the Supreme Court that contentious questioning will follow. He will have a difficult time distancing himself from statements he made as a government lawyer and from the bench that are controversial and might be regarded as extreme.
The American Bar Association gave Alito its highest rating, and his experience, intelligence and demeanor are not in question. Like John Roberts in his hearings last year to become the chief justice, Alito probably will not state his position on specific issues likely to come before the court, nor should he.
However, he should be required to state his judicial philosophy in arriving at his past opinions. At the top of the list is his 1985 application for a position in the Justice Department in which stated that "the Constitution does not protect a right to an abortion." He wrote that his position on that issue was among those of which he was "particularly proud."
Six years later, as an appeals judge, he dissented from a ruling that struck down a Pennsylvania law requiring married women to notify their husbands before having an abortion. The Supreme Court disagreed with him by a 5-4 vote.
Roberts was among nine government lawyers who signed a brief urging the Supreme Court to overturn its decision in Roe v. Wade but told the Senate Judiciary Committee that he took the position as an advocate of the Reagan administration. He said further that he believes the Constitution protects privacy, the basis for the Roe ruling. Alito will not find it so easy to distance himself from his past statements.
In the 1985 job application, Alito wrote that he opposed the "one person one vote" standard approved in the 1960s that resulted in reapportionment of voting districts to assure equal populations. The White House issued a statement in November that Alito now believes the standard is "bedrock principle." That should trigger questions about whether Roe also is a legal precedent that should stand.
The issue of presidential power has arisen since the Roberts confirmation with the revelation of the Bush administration's domestic wiretapping without court authority through the Foreign Intelligence Surveillance Act. As a government lawyer and in a 2001 speech to the conservative Federalist Society, Alito advocated an expansive interpretation of executive authority.
While a Justice Department lawyer under Reagan, Alito argued that courts interpreting federal law consider the president's intent in signing that law as important as congressional intent in fashioning it. That would be an extreme departure from how courts interpret statutes.
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