WASHINGTON – In the latest Democratic challenge to Judge Samuel Alito, Sen. Charles Schumer on Thursday urged the Supreme Court nominee to detail any role he played in drafting the Reagan administration's 1985 request for reversal of a landmark abortion rights ruling.
Schumer said in a letter that 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.
The questionnaire was made public Wednesday. It coincided with the release of a second document, a legal memo in which Alito urged fellow Reagan administration lawyers to seek the gradual erosion of abortion rights rather than mount an all-out repeal of Roe v. Wade, the 1973 ruling that established a constitutional right to abortion.
Despite the advice from Alito, the administration decided to seek a complete reversal in 1985. Its plea was rejected by the high court.
The letter from Schumer, D-N.Y., drew a sharp response from the White House. "It's increasingly apparent that Senator Schumer has no intention of giving Judge Alito's nomination any consideration whatsoever and that he will vote no on Alito like he did for Chief Justice (John) Roberts," spokesman Steve Schmidt said.
Schmidt said that Alito, in filling out the committee's questionnaire, listed the cases he had personally argued before the high court as well as those for which he had signed the legal brief.
Referring to the abortion-related case about which Schumer inquired, Schmidt said Alito did not write the brief. "Judge Alito's name was not listed on the Thornburgh brief and he was not the lawyer assigned to write the brief," Schmidt said. Reagan administration lawyers sought to have Roe overturned in the Thornburgh brief.
The tempest erupted as Sen. Arlen Specter, the chairman of the Judiciary Committee, announced plans to meet with Alito on Friday. Specter, R-Pa., also held two meetings with each of Bush's two former appointees to the high court — Roberts and Harriet Miers, who withdrew in the face of opposition from conservatives.
Schumer's letter suggested Alito should have included references to more cases.
"Please clarify whether — apart from the legal memorandum you prepared in connection with the government's brief — you also participated in the drafting of the Thornburgh brief," he wrote. He also asked for information on any other cases on which Alito "had such direct and significant input ... but neglected to mention."
Alito worked in the Office of the Solicitor General in the Reagan administration at the time of the abortion-related cases.
Charles Fried, acting solicitor general at the time, said in an interview that he alone wrote a 10-page portion of the legal paper that urged the court to reverse its landmark 1973 decision.
Alito "helped with the first part of the brief, which dealt with the jurisdictional errors of the court below," Fried said in an interview. "He had absolutely no part in writing the last 10 pages, which said Roe should be overruled. I wrote those pages personally and he had no link to that."
Albert Lauber, who also worked in the office at the time, had a similar recollection. He said he was assigned the task of writing the part of the brief that dealt with legal issues surrounding two cases that had come up through lower courts, but not the administration's request for the court to overturn the 1973 ruling.
Alito "helped with the legal research and analysis, and I think he gave me proposed inserts," Lauber said in an interview. He said that while Alito "made a real contribution to that part of the brief ... I wrote more than he did."