Archive: November 27, 2005 - December 03, 2005
Judge Alito and Abortion - New York Times
Times Editorial "His attempts to explain away his record of insisting that the Constitution does not protect abortion are becoming more tortured, and harder to believe."...
By Fred Barbash | December 3, 2005; 10:55 AM ET | Comments (2)
The Abortion Mainstream--Wall Street Journal
Review and Outlook ".....Amid all the speculation about Judge Alito's views on abortion, it's worth remembering that nothing in the 1985 memo -- in which he was acting as a government advocate -- translates into an indication of how he might rule on the Supreme Court. His 15-year record on the federal appeals court provides a much better guide to that. Those who know him, on both the right and left, say he is fair and impartial and brings no personal agenda to the bench. As for the memo, the main thing we've learned about Judge Alito is that he favored letting the issue of abortion be decided by the democratic process. It speaks volumes about today's judicial liberals that they consider this to be 'out of the mainstream.'"...
By Fred Barbash | December 3, 2005; 9:19 AM ET | Comments (33)
Nominee Says His Views on Abortion Would Not Affect His Decisions - New York Times
By Sheryl Gay Stolberg "The White House was 'very pleased' with the way Mr. Specter handled the situation, said a senior administration official, who spoke on condition of anonymity to avoid seeming to step into the Senate's business."...
By Fred Barbash | December 3, 2005; 7:51 AM ET | Email a Comment
Alito Distances Himself From 1985 Memos-The Washington Post
By Charles Babington "Left-leaning groups, and at least one prominent conservative, said it is ludicrous for Alito to play down the significance of memos he wrote as a Justice Department lawyer in the Reagan administration in which he said he was 'particularly proud' of fighting affirmative action programs and was looking forward to the day the Roe v. Wade abortion ruling is overturned."...
By Fred Barbash | December 3, 2005; 7:48 AM ET | Comments (6)
Shoot To Kill - Alito's blank check for cops--in Slate.
By Emily Bazelon "What should matter more to the senators who will soon decide whether Alito will sit on the Supreme Court is that his record as an appeals court judge shows that his views have not changed since Garner. In case after case, Alito has taken the side of police and prosecutors. Can the police stop and hold at gunpoint members of a family who happened to be standing on the doorstep of an apartment that the cops had come to raid? Can the police frisk a 10-year-old girl who is nowhere mentioned in their warrant? Yes and yes. In one opinion after the next, Alito looks at search-and-seizure cases like a former prosecutor, which he is."...
By Fred Barbash | December 2, 2005; 9:32 PM ET | Comments (3)
Student: "Alito's Going Down"--Harvard Crimson
Students Work To Bring Down Alito Only six students attended the introductory meeting for the Harvard chapter of Law Students Against Alito last night but the chapters leaders say they have ambitious plans both to help defeat Samuel A. Alito's nomination to the Supreme Court and to help promote a progressive judicial philosophy on campus. "...
By Fred Barbash | December 2, 2005; 4:09 PM ET | Comments (7)
Excerpts from Sen. Specter's News Conference
SPECTER: Afternoon, ladies and gentlemen. I met with Judge Alito for a little more than an hour this morning to get his responses to certain issues which have been raised in the news media. My job as chairman is to keep the playing field level and to be sure that there is a fair and thorough hearing for Judge Alito. I'm concerned that we not have a replay of what happened to White House Counsel Harriet Miers, who was really sort of run out of town on a rail. The process was shanghaied with the prejudicing of the position by the radio and TV talk shows and the columns. And we live in a free society and all of that is an entirely appropriate part of the process, but I do not want to see it get out of hand with respect to Judge Alito....
By Fred Barbash | December 2, 2005; 1:16 PM ET | Comments (4)
Video: Sen. Specter's Press Conf.
Click below to watch video of Sen. Arlen Specter's (R-Pa.) Dec. 2 press conference on the Alito nomination.
By washingtonpost.com Editors | December 2, 2005; 1:15 PM ET | Email a Comment
Alito Says Roe "embedded" in culture--Specter
Sen. Arlen Specter, in a news conference, said Judge Alito told him in conversation that he regarded a woman's right to choose as one of those precedents, like Miranda, "embedded" in our culture and thus not lightly overruled. Specter said he asked Alito about the memo he wrote on Roe while an assistant Solicitor General in 1985. Alito, Specter said, differentiated between his views as an advocate for the Reagan administration, which wanted Roe overturned, and his views as a judge. Specter said Alito told him that the fact that a precedent is embedded should be a "considerable factor in the application of stare decisis." Specter said he considered this a "considerable statement" from Alito. The analogy with Miranda was a reference to the late Chief Justice William H. Rehnquist, who voted to uphold Miranda after opposing it in the 1970s. On the Roe memo, "he said he was writing...
By Fred Barbash | December 2, 2005; 12:12 PM ET | Comments (190)
Top Democrats question Alito's credibility - The Boston Globe
By Susan Milligan...
By Fred Barbash | December 2, 2005; 6:31 AM ET | Comments (8)
Green groups to oppose Alito nomination-Newsday
By Tom Brune The Sierra Club and other green groups plan to announce their opposition to Supreme Court nominee Samuel Alito in mid-December because of concerns he might undermine Congress' ability to pass environmental laws, according to an internal club memo obtained by Newsday....
By Fred Barbash | December 2, 2005; 5:53 AM ET | Comments (1)
Democrats Are Taking Firmer Stance Against Alito Nomination - New York Times
By Carl Hulse and David D. Kirkpatrick New disclosures about Judge Samuel A. Alito Jr.'s positions on abortion are stiffening Democratic resistance and complicating the nomination for moderates in both parties as the Senate moves toward a Supreme Court confirmation fight in a charged election-year atmosphere....
By Fred Barbash | December 2, 2005; 3:22 AM ET | Comments (1)
Akhil Amar, Lillian Bevier Discuss Alito Documents-News Hour
For a less feverish assessment of the 1985 Alito documents, click here to see the discussion on PBS' News Hour last night. Both professors said the documents reflect a high level of legal craftsmanship while giving away little about how Alito might vote on Roe....
By Fred Barbash | December 2, 2005; 3:18 AM ET | Comments (1)
Newly Released Papers Energize Alito's Critics-The Washington Post
By Charles Babington "In a sign of Republican nervousness about the criticisms, Committee Chairman Arlen Specter (R-Pa.) quickly scheduled a meeting with Alito for today, after which the senator will speak to reporters"...
By Fred Barbash | December 2, 2005; 3:12 AM ET | Email a Comment
Concurring Opinions: Alito's Footnote 10
At Concurring Opinions Dave Hoffman focuses on a little noticed footnote in Alito's '85 abortion-related memo and concludes that it "makes it significantly harder for Alito to follow Justice Roberts' path, and rely on paeans to the rule of law and stare decisis in response to questions about Roe."...
By Fred Barbash | December 1, 2005; 8:04 PM ET | Email a Comment
Schumer Asks Alito for More Abortion Info
Associated Press: "In a letter, Schumer said it was 'puzzling' that Alito had omitted mention of the case in filling out a Senate Judiciary Committee questionnaire that sought a detailed summary covering 'the nature of your participation' in litigation before the Supreme Court."...
By Fred Barbash | December 1, 2005; 5:32 PM ET | Email a Comment
Former Colleague Describes Alito Role in Abortion Brief--Bloomberg
He was "just being a good lawyer."...
By Fred Barbash | December 1, 2005; 4:46 PM ET | Email a Comment
Dahlia Lithwick on the Ayotte Arguments-at Slate.com.
Slate "Just to be clear about what's happening today: No one is talking about reversing Roe v. Wade. But I can't count five people willing to apply the holding in Casey to these facts either. Instead most of the court is doing constitutional loop-the-loops to try to save the New Hampshire law, even though they are almost all bothered by the lack of a health exception. Mostly they try to graft a health exception back on, whether or not the New Hampshire legislators wished to have one. The larger point is that New Hampshire nipped and tucked the so-called right to an abortion when it passed this law, and most of the court thinks that is just fine."...
By Fred Barbash | December 1, 2005; 5:41 AM ET | Email a Comment
Legal Affairs Debate Club-Jack Balkin v. Sanford Levinson
Should Liberals Stop Defending Roe? Professors Jack Balkin and Sanford Levinson continue their running debate on what to do about Roe at the Legal Affairs website. It is a smart discussion worth following. Balkin: "As a thought experiment, imagine what would have happened this year if, before the Roberts and Alito nominations, the Democrats had signaled that appointing candidates who sought to overrule Roe would not produce substantial opposition. Do you seriously believe this would have produced more moderate nominees from President Bush, nominees more committed to gay rights or more devoted to subjecting the executive to the rule of law? To the contrary, Bush would have seen this as a sign of political capitulation, and he would have felt liberated to play to his base even more. "Levinson: The point is that Democrats seem able only to react (ineptly), rather than to be more pro-active and throw down a...
By Fred Barbash | December 1, 2005; 3:48 AM ET | Comments (6)
Alito Documents-Los Angeles Times
Alito Sketched Strategy to Overturn Roe in '85 - Los Angeles TimesBy Maura Reynolds and Richard B. Schmitt...
By Fred Barbash | December 1, 2005; 3:17 AM ET | Comments (1)
Alito Documents-Philadelphia Inquirer
Alito urged an anti-Roe campaignBy Stephen Henderson and Howard Mintz"...
By Fred Barbash | December 1, 2005; 3:07 AM ET | Email a Comment
Alito Documents-Wall Street Journal
In Memo, Alito Backed State Laws Limiting Abortion By Jess Bravin and Jeanne Cummings...
By Fred Barbash | December 1, 2005; 3:04 AM ET | Email a Comment
Alito Documents-New York Times
Alito File Shows Strategy to Curb Abortion Ruling By David D. Kirkpatrick...
By Fred Barbash | December 1, 2005; 2:56 AM ET | Email a Comment
Alito Documents-Washington Post
Alito Helped Craft Reagan-Era Move To Restrict 'Roe' Supreme Court Nominee Wrote Memo In 1985 as Justice Department Lawyer, By Amy Goldstein and Jo Becker...
By Fred Barbash | December 1, 2005; 2:52 AM ET | Comments (1)
Spin on Alito Memo
Wendy Long in Bench Memos at NR Online: The May 30, 1985 memo released today by the National Archives, written by Judge Alito when he was a Reagan administration lawyer working under Solicitor General Charles Fried, reflects tactical litigation advice that Judge Alito, writing 20 years ago as a deputy lawyer in the Office of the Solicitor General, gave to his client, the pro-life administration of President Ronald Reagan. The administration ultimately did not follow some of that advice: it called for the overturning of Roe, whereas Judge Alito had urged that the administration not call for Roe's reversal. Excerpt from Background Briefing at DOJ today by Rachel Brand, Assistant Attorney General: RACHEL BRAND I know that there is some press coverage already about the Thornburgh -- (inaudible) -- memo that came out from the National Archives today, so I was going to say a couple of sentences about that...
By Fred Barbash | November 30, 2005; 6:27 PM ET | Comments (4)
Alito's Recollections of Princeton Club
David Espo, of the Associated Press, reports on one of the disclosures Alito made in his formal response to the Senate, which also was released today: Alito stepped carefully around his one-time membership in Concerned Alumni of Princeton, a conservative organization that sparked controversy two decades ago by saying school officials had lowered admission standards to accept women and minority applicants. "A document I recently reviewed reflects that I was a member of the group in the 1980s. Apart from that document, I have no recollection of being a member, of attending meetings or otherwise participating in the activities of the group," he wrote the Senate....
By Lexie Verdon | November 30, 2005; 5:03 PM ET | Comments (5)
NARAL Response
NARAL Pro-Choice America, an abortion-rights group, has already registered its opposition to Alito. But today's disclosures about his work during the Reagan administration brought new disapproval. In a statement posted on the group's Web site, President Nancy Keenan said, "Samuel Alito's writings reflect a visceral opposition to Roe v. Wade. It is clear that his legal philosophy calls for a calculated strategy to dismantle fundamental constitutional protections for women, including the health exception issue that the Supreme Court is considering right now. Alito's memo is a litany of legal strategies designed to undermine women's reproductive health. He even confuses birth control with abortion and advocates additional restrictions on women's access to contraception. If Alito replaces Justice Sandra Day O'Connor, the Court will shift in a direction that jeopardizes the fundamental values of freedom and privacy that a vast majority of Americans want protected."...
By Lexie Verdon | November 30, 2005; 4:43 PM ET | Comments (5)
Schumer Finds Memo "Stunning'
Jesse J. Holland of the Associated Press reports: Sen. Charles Schumer, D-N.Y. and a member of the Senate Judiciary Committee, called the memo "stunning." "These latest revelations cast serious doubt on whether Judge Alito can be at all objective on the right to privacy and a woman's right to choose," Schumer said. White House spokesman Steve Schmidt called Schumer's criticism "unfair." "Judge Alito should be evaluated on his 15 years of jurisprudence as a federal judge where he has authored hundreds of opinions," Schmidt said. "On some of those cases, he has upheld abortion rights. In other cases he has not. To leap to conclusions and try to infer future decisions from 20-year-old memos borders on the silly."...
By Lexie Verdon | November 30, 2005; 4:25 PM ET | Comments (1)
Neas's Criticism
The liberal lobbying organization People for the American Way was quick to criticize Alito over his efforts in the 1980s to get Roe v. Wade overturned. "This new document isn't just a smoking gun. It's a smoking cannon. The American people should have no doubt that Samuel Alito is poised to change more than 25 years of reproductive rights for women in America," said the group's president Ralph G. Neas, in a statement released on the organization's Web site. "As with Robert Bork in 1987, the best evidence against his confirmation is his written record over the past quarter of a century."...
By Lexie Verdon | November 30, 2005; 4:18 PM ET | Comments (3)
Alito Pushed for U.S. Brief Suggesting Overruling of Roe
Samuel A. Alito urged the Justice Department in 1985 to suggest to the Supreme Court that it consider overruling Roe v. Wade. (Click here for news story.) In a memo from Alito circulated in the department, he suggested filing a friend of the court brief stating that "we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether, and if so to what extent, that decision should be overruled." In the memo, Alito said he found "this approach preferable to a frontal assault on Roe v. Wade. It has most of the advantages of a brief devoted to the overruling of Roe v Wade," he wrote. "It makes our position clear, does not even tacitly concede Roe's legitimacy, and signals that we regard the question as live and open. "At the same time," Alito wrote, "it is free of...
By Fred Barbash | November 30, 2005; 11:46 AM ET | Comments (12)
Alito Documents Released
More Alito DOJ documents have been released by the National Archives, just as the Alito questionnaire is being released, just as the oral arguments in the abortion case are underway, just as Washington is reacting to the president's speech on the war in Iraq.Click here for the documents....
By Fred Barbash | November 30, 2005; 11:18 AM ET | Comments (4)
Alito Questionnaire Released
Jesse J. Holland of the Associated Press reports: Supreme Court nominee Samuel Alito told senators Wednesday that federal judges must constantly guard against using judicial activism to get the results they want, especially when dealing with the nation's highest law, the U.S. Constitution. "Our constitutional system relies heavily on the judiciary to restrain itself," Alito said in a 64-page response to a Senate Judiciary Committee questionnaire. "To do this, judges must engage in a continual process of self-questioning about the way in which they are performing the responsibilities of their offices," he continued. "Judges must also have faith that the cause of justice in the long run is best served if they scrupulously heed the limits of their role rather than transgressing those limits in an effort to achieve a desired result in a particular case." In some instances, Alito said, Congress can simply write a new law to blunt...
By Fred Barbash | November 30, 2005; 11:13 AM ET | Comments (1)
Alito and Unpublished Rulings--AP
Alito Showed Even Keel in Court DisputeAlito chaired a judicial advisory committee that tackled an arcane dispute over whether lawyers arguing cases on appeal can cite in their legal briefs the unpublished or "nonprecedential" rulings issued by any of the 13 U.S. courts of appeal....
By Fred Barbash | November 30, 2005; 7:17 AM ET | Comments (1)
Resources on abortion cases to be argued at SCOTUS Wednesday.
For resources, including briefs and case summaries, on the abortion-related cases set for oral argument Wednesday at the Supreme Court, click here. C-SPAN will air audio of the arguments shortly after they are completed, about 12.15 p.m....
By Fred Barbash | November 29, 2005; 7:39 PM ET | Email a Comment
National Archives to Release Online Materials Relating to Samuel Alito -Press Release
Files of Charles Cooper, and AG Edwin Meese to be available....
By Fred Barbash | November 29, 2005; 3:33 PM ET | Email a Comment
Court weighs girls' access to abortion-csmonitor.com
By Warren Richey: Wednesday the US Supreme Court takes up a case that could change the abortion battle in a fundamental way, potentially allowing state lawmakers across the nation to enact more-restrictive regulations on a woman's right to choose abortion....
By Fred Barbash | November 29, 2005; 3:31 PM ET | Comments (1)
Ayotte v. Planned Parenthood of Northern New England
For a good summary of this abortion-related case, set for argument tomorrow, see the article by Alex Lees at SCOTUSblog...
By Fred Barbash | November 29, 2005; 12:13 PM ET | Comments (3)
Should Liberals Stop Defending Roe?
Legal Affairs Debate ClubSanford Levinson: "From a crass political perspective i.e., a concern with electoral success, the best thing that could happen to the Democratic Party is the overruling of Roe and the full 'politicization' of abortion......The Democrats don't need Roe; the Republicans do! "Jack Balkin:The solution for Democrats and progressives is not to give up on Roe. It is to defend it in the democratic political process....
By Fred Barbash | November 29, 2005; 5:53 AM ET | Comments (32)
Inside the Alito Memo-Law.com
By. T.R. Goldman: "The irony is that Alito's ideologically charged application was for a job in a venerable and long-standing Department of Justice office whose mission usually involves nondescript legal analysis. "...
By Fred Barbash | November 29, 2005; 5:41 AM ET | Email a Comment
Alito Documents-Newark Star Ledger
Alito said FBI reach trumped 2 courts By Robert Cohen and Chuck McCutcheonAs a Justice Department lawyer, Supreme Court nominee Samuel A. Alito Jr. took an expansive view of the FBI's authority to probe the backgrounds of government employees to ensure they are not security risks or disloyal to the United States....
By Fred Barbash | November 29, 2005; 4:22 AM ET | Email a Comment
Alito Documents - Los Angeles Times
Alito Sided With Federal AuthoritiesBy David G. SavageAs a lawyer in the Reagan administration, Samuel A. Alito Jr. advised the FBI that it had broad power to investigate government employees as security threats, even if they had no involvement in national security matters....
By Fred Barbash | November 29, 2005; 4:12 AM ET | Email a Comment
Alito Documents--The Washington Post
'86 Alito Memo Argues Against Foreigners' Rights By Jo Becker and Amy Goldstein As a senior lawyer in the Reagan Justice Department, Samuel A. Alito Jr. argued that immigrants who enter the United States illegally and foreigners living outside their countries are not entitled to the constitutional rights afforded to Americans."...
By Fred Barbash | November 29, 2005; 4:09 AM ET | Email a Comment
Alito Documents--New York Times
Alito Memos Supported Expanding Police Powers By David D. Kirkpatrick As a lawyer in the Reagan Justice Department, Samuel A. Alito Jr., the Supreme Court nominee, played an active role in advancing the administration's efforts to expand law enforcement powers and limit restrictions on prosecutors, documents released Monday by the Justice Department show....
By Fred Barbash | November 29, 2005; 4:06 AM ET | Email a Comment
Alito Documents--The Boston Globe
Alito, in '80s, had an expansive view of police powers As a young Reagan administration lawyer, the Supreme Court nominee, Samuel A. Alito Jr., took an expansive view of government law-enforcement powers in numerous cases in which he was called upon to balance the prerogatives of police and prosecutors with the rights of individuals, according to 400 pages of documents released yesterday by the Justice Department....
By Fred Barbash | November 29, 2005; 4:01 AM ET | Email a Comment
Alito DOJ Documents
Thomas Ferraro of Reuters reports: As a top U.S. Justice Department lawyer two decades ago, U.S. Supreme Court nominee Samuel Alito backed tougher punishment for certain civil rights violations as well as keeping fingerprint records of Iranian and Afghan refugees, documents released Monday showed. The papers also showed Alito wrote that the FBI could not transfer to the National Archives confidential tax returns, grand jury and electronic surveillance materials. But Alito told the Internal Revenue Service its lawyers, with Justice Department approval, could secretly record face-to-face conversations with taxpayers....
By Fred Barbash | November 28, 2005; 7:01 PM ET | Email a Comment
C-SPAN to Air Same Day Oral Argument in Abortion Case
The following release comes from C-Span: Wednesday's one-hour, Supreme Court oral argument in a noted abortion case will air at approximately 12:15 p.m. ET on C-SPAN, C-SPAN Radio and c-span.org as soon as the recording is released by the Court. The Supreme Court agreed earlier this month to the same-day release of audio recordings of oral arguments in two upcoming cases of particular national interest, in response to a request from C-SPAN....
By Fred Barbash | November 28, 2005; 4:35 PM ET | Comments (4)
Scotus Drops Facade
Court Divided in New Schism The Associated Press reports; A basketball-sized piece of marble moulding fell from the facade over the entrance to the Supreme Court, landing on the steps near visitors waiting to enter the building. No one was injured when the stone fell. The marble was part of the dentil moulding that serves as a frame for the frieze of statues atop the court's main entrance....
By Fred Barbash | November 28, 2005; 10:54 AM ET | Comments (7)
Alito keeps favor of conservatives, moderates--USA Today
By Kathy Kiely: "The veteran federal appeals court judge has managed so far to impress conservatives without losing the support of moderates who disagree with them on such issues as abortion, affirmative action, the environment and the role of religion in public life, all of which are likely to come before the Supreme Court."...
By Fred Barbash | November 28, 2005; 8:10 AM ET | Comments (6)
On Overturning Roe, Alito Should Remain Silent--Opinion Journal
By Roger Pilon: Roe v. Wade was wrongly decided, but he shouldn't say if he'd overturn it....
By Fred Barbash | November 28, 2005; 6:28 AM ET | Email a Comment
Targeting Vulnerable Senators on Alito Vote-The Washington Post
Advocacy Groups in grassroots battles....
By Fred Barbash | November 28, 2005; 3:48 AM ET | Email a Comment
Life and death and Samuel Alito - Los Angeles Times
Op Ed by Goodwin Liu...
By Fred Barbash | November 27, 2005; 8:51 AM ET | Comments (4)
Alito's attitudes - Boston Globe Editorial
The Boston Globe: "It's NO surprise that President Bush resisted postponing the Senate confirmation hearings on Samuel Alito's nomination to the Supreme Court until January. The more Americans learn about Alito, the more worrisome his appointment becomes."...
By Fred Barbash | November 27, 2005; 8:46 AM ET | Email a Comment
