The Alito Memos

December 5, 2005

Today, Republican judicial nominees must engage in a distasteful cat-and-mouse charade whereby they are badgered to repent from any past blasphemies in which they contradicted liberal church doctrine on abortion.

Speaking of such blasphemies, two 1985 memos are said to be the twin barrels of the smoking gun that prove Judge Alito to be an irredeemable enemy of women’s sacred rights. One involved his application for a position with the attorney general in which he reportedly expressed pride in contributing to legal arguments for the Reagan administration such as “the Constitution does not protect a right to an abortion.”

The second is a memo he wrote as a lawyer in the U.S. Solicitor General’s Office in a certain abortion case where he discussed “this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects.”

The discovery of these writings immediately placed Alito in the doghouse. How dare a Supreme Court nominee have had the audacity to suggest that a case that even many liberal legal scholars recognize as poor constitutional law is poor constitutional law and ought to be overturned?

These revelations nudged liberal Sen. Specter toward convulsions. Specter indicated he would ask Alito to answer a number of questions in writing, presumably giving him a chance to express contrition for such breaches of postmodern etiquette and properly distance himself from those past sins.

The White House convinced Specter to meet with Alito instead and publicly report his responses. According to Specter, in the first memo, Alito was merely expressing a “personal opinion, [which] would not be a factor in his judicial decision.” In the second, “he was writing as an advocate; that his role as a judge would be different.”

These explanations aren’t satisfying liberal groups, which is entirely predictable, since they’re apparently impervious to the concept that a judge can separate his personal or political views from his rulings and dispassionately interpret the Constitution. (You know how it works: Thieves think everybody steals, Bill Clinton thinks everybody lies, liberal judicial activists think every judge is an activist.)

Accordingly, they are convinced Alito’s presumed personal opposition to abortion dictated his vote (by way of dissenting opinion) in Casey v. Planned Parenthood to uphold a state statute requiring a married woman to inform her husband before having an abortion. It couldn’t possibly be that he believed the law required him to uphold the statute.

I have no doubt Alito was telling the truth about both memos. His statement that the role of a legal advocate is different from that of a judge is inarguable. He was writing as an advocate, and that is no less true if his actual legal opinion happened to be consistent with his advocacy position. It is also true, liberal cynicism aside, that a Constitution-respecting judge truly strives to (and does) separate his personal views from his decision making.

But based on today’s unwritten rules that only inscrutable, stealth nominees need apply, I suppose Judge Alito would be foolish to volunteer his personal opinion (if it is his opinion) that abortion is morally wrong, or his personal legal opinion (if it is his opinion), that Roe was wrongly decided.

The problem is that if Alito answers the questions more explicitly, such as saying, “I believed then, consistent with my advocacy memos, that Roe was wrongly decided, and I still believe so today,” he might be coming too close to telegraphing how he would rule in a future case. He can’t possibly know in what context the issue may later come before the Court. He would also be giving the pro-abortion-litmus-test Left an excuse to filibuster his nomination. He has no choice, then, but to answer the way he did.

There is also the possibility, as has been suggested, that he believed in 1985 that Roe was wrongly decided, but that its presence in our jurisprudence for 20 more years weighs heavily against overturning it in 2005. Even judges who fashion themselves strict constructionists regrettably sometimes believe that longstanding Supreme Court decisions, even if erroneous when entered, should rarely be overturned.

Concerning Roe, liberals have a ray of hope with both Justice Roberts and Judge Alito. They both doubtlessly believe or at least believed at one time, personally and professionally, that the case was wrongly decided. But it is far from clear that either would overturn Roe today — though I pray they would — given their professed reverence for Supreme Court precedent and their reluctance to overturn even wrongly established precedent.

It’s a sad state of affairs that liberal activist nominees, who are sure to uphold bad law, like Roe, when it suits their policy objectives, will breeze through the confirmation process absent a character or competence issue, but most Constitution-respecting ones will have a very difficult time. But in politics, double standards abound.