Documents released this week reveal much more at stake in the nomination of Judge Samuel Alito to the Supreme Court than just Roe vs. Wade.
A Times Editorial
Published November 18, 2005
Which Samuel A. Alito Jr. is poised to succeed the cautious Sandra Day O'Connor at the Supreme Court? The one who, touting himself for promotion in the Reagan administration, sounded remarkably like Robert Bork on such issues as abortion and affirmative action? Or the seasoned judge of today, 20 years older and much wiser, who dismisses what he said then as merely the rhetoric of an "advocate seeking a job"?
It's human nature, to be sure, to tell a prospective boss what you think he wants to hear. But what Alito wrote to Attorney General Edwin I. Meese III in 1985 is not what most Americans cared to hear then or would be comfortable with today.
Alito was "particularly proud" that as an assistant solicitor general he had argued the government's case that "the Constitution does not protect a right to an abortion." What's more, he credited his youthful conservatism and interest in constitutional law "in large part" to disagreement with the Earl Warren court's decisions on school prayer and reapportionment. And he mentioned his membership in Concerned Alumni of Princeton, which opposed the admission of women to the university and defended the all-male membership of its eating clubs.
Alito got his promotion, by the way.
The 1985 document, released this week by the Ronald Reagan Presidential Library, confirms that there is a great deal more at stake than the survival of Roe vs. Wade. Floridians, for example, will be keenly interested in whether Alito's views on reapportionment have evolved since those of the Warren court offended him.
But for the Warren Court, Jefferson County with 14,000 people might still have the same Senate representation as Pinellas and Hillsborough with nearly 1-million each or Miami-Dade with twice as many. Before the Warren Court stepped into what its predecessors had avoided as a "political thicket," all legislatures were malapportioned and none so grotesquely as Florida's. Rural counties with fewer than 15 percent of the population could elect majorities of both Florida houses. The rest were taxed without effective representation, for which there was no remedy until the court stepped in.
It is not a moot issue. Gerrymandering has made a mockery of "one-voter, one-vote" in many cynical ways. Although the court has said it will overrule political gerrymandering in an appropriate case, it has yet to see one. Would Alito see it?
The 1985 memo also raises doubts about his supposed libertarian streak, which would be inconsistent with his view of a proper government role in "protecting traditional values." A remark about the "supremacy" of the elected branches implies that he regarded the judicial branch as inferior, which would not please the ghost of the great Chief Justice John Marshall.
Alito is an intelligent and by all accounts honorable man who perhaps can rationalize all this to everyone's satisfaction. But if nothing else, the document vindicates Chairman Arlen Specter's refusal to have the Judiciary Committee hasten Alito's confirmation. He has a lot to explain, to say the least, and should be given all the time he needs to do it.
