How Alito would shift high court on key issues

"I think the most dangerous aspect of Sam Alito is his deference to the government," says Jonathan Turley, a professor at George Washington University School of Law. "When it comes to government abuse and assertions of government power, Sam Alito is an empty robe."

Not since the 1987 nomination of Judge Robert Bork to replace retiring moderate Justice Lewis Powell has the high court faced such an abrupt move to the right in so many areas at once. And not since the Bork nomination has there been such a large and determined coalition assembled in opposition to a high court nominee, analysts say.

Supporters portray Alito as a careful, conservative jurist within the mainstream of American legal thought. Opponents paint him as an agenda-driven ideologue.

For the past two months journalists and legal analysts have been poring over hundreds of Alito decisions issued during his 15 years as a judge on the Philadelphia-based Third US Circuit Court of Appeals. They have also examined memos and letters he wrote while working as a Justice Department lawyer during the Reagan administration. "I am particularly proud of my contribution in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion," Alito wrote in one letter.

In a 1985 memo, Alito made clear his legal judgment that the landmark abortion case, Roe v. Wade, should at some point be overturned. But he said in the memo that the 1985 case then before the high court was not the right time to push for it. Instead, he counseled his Reagan administration colleagues to urge the court to cut back on abortion protections.

Some Alito supporters have downplayed the papers, saying they were produced 20 years ago when Alito was a young lawyer, and not yet a judge. They urge senators to focus instead on Alito's work as an appeals court judge.

But analysts like Mr. Fein say that the memos are a far more revealing source of insight than Alito's appeals court decisions when attempting to assess how Alito might behave as a Supreme Court justice. "The court of appeals isn't in an advocacy role, the appeals court is bound by the rulings of the Supreme Court," he says, "whereas a Justice Department lawyer ... is trying to anticipate and trying to nudge the court in a direction it thinks is correct and right."

Making judgments about where the law should be headed rather than studiously following the guidance of other courts is closer to the role of a Supreme Court justice, Fein says. Rather than backing away from the positions he advocated in the Justice Department, Alito should embrace and defend them. "In 2006, the country is ready for a conservative," he says.

Professor Turley agrees that the Alito memos are revealing, but he doesn't believe they help Alito. Instead, he says, they suggest a justice who may be oriented toward achieving conservative results rather than staking out and adhering to a principled position.

"I think you see that in his memos as an attorney," Turley says. "He believed that Roe v. Wade was wrongly decided and should be overturned. However, he argued that it should be gutted rather than overturned for tactical purposes."

Page: 1 | 2