WASHINGTON – One of the documents made available Wednesday from Supreme Court nominee Samuel Alito's work in the Reagan administration solicitor general's office has Alito recommending that the Justice Department use two state cases to get the Supreme Court to modify its decision in Roe v. Wade.
In a memo to Solicitor General Charles Fried in 1985, then Deputy Solicitor General Alito wrote that the Justice Department should support laws in Pennsylvania and Illinois that restrict abortion. At the time, both states' laws had been invalidated by appeals courts and were being sent to the Supreme Court for review.
Alito wrote that these appeals offered the administration an "opportunity to advance the goals of bringing about the eventual overruling'' of Roe v. Wade. He suggested pressing the issue on the basis of "informed consent."
"I find 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 ... It makes our position clear, does not even tacitly concede Roe's legitimacy and signals that we regard the question as live and open,'' he wrote.
In forwarding Alito's memo to other Justice Department officials, Fried wrote: "I need hardly say how sensitive this material is, and ask that it have no wider circulation.''
The memo, released Wednesday by the Justice Department as part of a document drop on the Supreme Court nominee, was defended by Alito's supporters who said he was only doing his job.
Alito was not acting as a judge but as a lawyer, said one senior Justice Department official. The official said "nothing" in the memo indicates how Alito would rule as a judge on abortion.
Added Wendy Long, counsel for the Judicial Confirmation Network, which supports the candidate: "Judge Alito was giving tactical advice to his client, the Reagan administration, about the strategy for attacking these abortion cases. It was understood that the Reagan administration had a lot of criticism of the way the abortion cases were going in the Supreme Court. Its position was that abortion is a subject that can be the subject of modest, reasonable regulations to protect the health of women, and to protect the state's interest in unborn life."
But lawmakers who are to consider whether to vote for Alito expressed dismay at the document.
"The language and strategic thinking in the newly revealed memo is 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," said Sen. Charles Schumer, D-N.Y., a member of the Senate Judiciary Committee.
"The documents released today ... appear to be a clear sign that he passes the right's litmus test with flying colors," said Sen. Ted Kennedy, D-Mass., also a member of the committee.
Kennedy pointed to Alito's 1985 job application to the Justice Department that had previously been released. In it, Alito said that he personally believes that the Constitution does not protect a women's right to privacy in her own medical decisions. Alito distanced himself from the response after questioning,
"He needs to make clear that he no longer questions constitutionally established remedies for discrimination and protections for the right to vote, and that he will not come to the court with an agenda to roll back women's rights," Kennedy said.
Alito was nominated by President Bush on Oct. 31 as the replacement for retiring Justice Sandra Day O'Connor, who has been a deciding vote on abortion on the Supreme Court. Alito's opponents fear that he and recently confirmed Chief Justice John Roberts would swing the Supreme Court to the right and lead to overturning Roe v. Wade.
Senators say Alito has expressed "great respect" for the precedent established by the landmark abortion decision but didn't commit to upholding it in his two weeks of private meetings with them. Alito also has distanced himself from his earlier comments that there was no constitutional right to abortion, with senators saying that he has told them that now "I don't give heed to my personal views, what I do is interpret the law."
"The 1985 document is from the same time that he prepared his so-called job application where he said that he did not believe that there was a right to an abortion in the Constitution. And as I say, that will be a central line of questioning. In fact, that's where I will begin the questioning as to his views on a woman's right to choose, and what impact there is on stare decisis," Sen. Arlen Specter, R-Pa., chairman of the Senate Judiciary Committee said Wednesday. In a letter to Alito released in the morning, Specter said he will also question Alito on affirmative action and voting rights issues.
The Senate Judiciary Committee questionnaire returned by Alito may provide some insight. The nominee on Wednesday told senators that federal judges must constantly guard against slipping into judicial activism to get the results they want on cases.
"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."
Alito, however, said he saw no problem with federal judges crafting strong remedies "when a constitutional or statutory violation has been proven."
"Some of the finest chapters in the history of the federal courts have been written when federal judges, despite resistance, have steadfastly enforced remedies for deeply rooted constitutional violations," Alito wrote. At the same time, judges must "avoid unnecessary interference" in the roles of the political branches.
The Jan. 9 hearing should reveal whether Alito believes activism means upholding existing precedents or changing them to right earlier perceived judicial wrongs.
FOX News' Jim Angle and The Associated Press contributed to this report.
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