By BOB EGELKO
San Francisco Chronicle
January 25, 2006
Nearly every issue raised at a weeklong Senate Judiciary Committee hearing earlier this month had its origins in the essay Alito submitted to the White House when he was a 35-year-old government lawyer, which began with the declaration, "I am and always have been a conservative."
Now that the Senate Judiciary Committee has endorsed Alito, a central question for the full Senate when it votes as early as Friday is whether his statements of more than 20 years ago predict how he will rule from the bench if he replaces retiring Justice Sandra Day O'Connor.
Those statements outlined, among other things, Alito's beliefs that courts should stop meddling in elected officials' decisions, that the Constitution does not protect the right to an abortion and that the Supreme Court's reapportionment decisions were wrong.
The passage of time doesn't blunt the importance of the document, says one opponent of the 55-year-old federal appeals judge's nomination.
"I think it reflects how much the same issues that divided us then are still dividing us today," said Erwin Chemerinsky, a Duke University law professor.
"There's no doubt that a person's views influence what he or she is going to do as a justice," Chemerinsky said. "I think his entire record since 1985 shows he is true to the values he espoused in that application."
Maybe so, said UC Berkeley law Professor Jesse Choper, but Democrats seemed unable to use Alito's writings to brand him as an ideologue.
"I thought some of his arguments (explaining his 1985 statements) were vulnerable, but ... when the dust cleared and the hearing was over, he was not injured seriously," said Choper, a former law clerk to Chief Justice Earl Warren.
Harvard law Professor Charles Fried, who was Alito's boss in the Reagan administration when he wrote the application, agreed that the views Alito expressed in 1985 are relevant to the confirmation debate. But he said they shouldn't be overemphasized.
"It tells you what side of the world he was on ... and that would tell you something about what his predispositions are," Fried said. "Does it tell you how he would vote on those cases 20 years later in a different situation? It's not irrelevant, but it certainly does not answer that question. ... He made it quite clear that (his predispositions) don't control his judicial behavior."
Alito argued as much when asked at the hearings about his 1985 assertion that the Constitution does not recognize the right to an abortion: "That was a statement that I made at a prior period of time when I was performing a different role. ... When someone becomes a judge, you really have to put aside the things you did as a lawyer ... and think about legal issues the way a judge thinks."
Some Democrats accepted similar assurances from Chief Justice-to-be John Roberts last fall, but they seem unwilling to give Alito the same latitude. At the Judiciary Committee hearings, they focused on passages in the 1985 job application in which Alito, who then held a nonpolitical job in the solicitor general's office headed by Fried, sought to establish his conservative credentials to the Reagan administration.
Principles he believed in, he wrote, included "the supremacy of the elected branches of government," which have suffered from "the usurpation by the judiciary of decision-making authority."
He said he became interested in constitutional law in the 1960s largely because of disagreement with the Warren court's rulings on reapportionment, among other subjects. Although he did not describe those rulings, the most important one was the 1964 "one person, one vote" decision, which required legislative districts to be equal in population.
Alito wrote that he was proud to have contributed to Reagan administration legal arguments "in which I personally believe very strongly," including the assertion that "the Constitution does not protect a right to an abortion."
He got the job, as deputy assistant attorney general in the Office of Legal Counsel, a first step toward his 1990 judicial appointment by President George H.W. Bush. But the political landscape is different for a Supreme Court candidate in 2006.
Assertions of presidential power, which Alito made during a Reagan administration campaign to regain executive authority lost after Watergate, now can be cast by critics as his endorsement of unilateral authority to wiretap Americans or abuse foreign captives. The once-controversial reapportionment rulings are now seen as landmarks of equality. And abortion has become, if anything, even more central to judicial confirmation, to the point that any position on the issue can be politically dangerous for a nominee.
Alito navigated through the minefields at his confirmation hearings.
Asked about his advocacy of the "supremacy of the elected branches," he said it was simply an "inapt phrase" that he hadn't intended as an endorsement of unchecked presidential power. "The branches of government are equal," he said, seemingly a contradiction of what he wrote in 1985.
He said his criticism of the Warren court's reapportionment rulings was not directed at its "one person, one vote" mandate, which Alito said he has never opposed. Instead, he said he was perturbed by lesser-known rulings requiring near-absolute equality in all political districts, regardless of city and county boundaries.
As for abortion, he refused to say whether he still believes no such right exists in the Constitution, but said his record as a judge shows no agenda.
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