Democrats to target Alito memos at hearings

WASHINGTON — Senate Democrats are expected to attack Supreme Court nominee Samuel Alito on multiple fronts at the confirmation hearing that begins today, but their strongest ammunition is likely to come from the nominee's own hand.

Alito wrote two memos in 1985 that rocked political circles when they were made public in November.

In one, an application for a promotion in the Reagan administration, Alito wrote "the Constitution does not protect a right to an abortion."

He said he was proud to fight for such causes in which "I personally believe very strongly," and he cited his membership in a conservative Princeton alumni group widely criticized for opposing efforts to bring more women and minorities to that university.

The other memo outlined a strategy for attacking the landmark 1973 Supreme Court ruling that legalized abortion nationwide, asking: "What can be made of this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects?"

Alito and his supporters have sought to put some distance between him and the memos. Republicans predict he will survive this week's grilling and be confirmed to succeed centrist Justice Sandra Day O'Connor, a step that could shift the court notably to the right.

But Judiciary Committee Democrats say they will press him to explain his writings, and warn that peril may lie in his fully embracing them or trying to disavow them.

"He indicates in his job application his view about what the Constitution guarantees in terms of, for example, women and the issue of abortion," Sen. Edward Kennedy, D-Mass., said Sunday on ABC's "This Week." "We haven't had a statement like that since Robert Bork," the outspoken conservative who was rejected for a Supreme Court seat in 1987.

Kennedy described the now-disbanded Concerned Alumni of Princeton as "anti-black, anti-disabled and anti-women," and said Alito in 1985 "took a sense of pride in belonging to" it.

Alito has said recently he does not recall participating in the group. Democrats say that is an example of evasions they will aggressively challenge.

Another committee Democrat, Charles Schumer of New York, said on NBC's "Meet the Press" that Alito in 1985 unequivocally stated "that the Constitution does not provide for a right to an abortion. The worst thing that could happen with Judge Alito is if he tries to duck the question."

Unlike recently confirmed Chief Justice John Roberts, Schumer said, Alito has expressed his personal and legal views on abortion so clearly that he cannot refuse to discuss them with senators by contending he must remain unbiased in case the Supreme Court revisits the issue.

After Alito met in November with Judiciary Committee Chairman Arlen Specter, R-Pa., Specter told reporters the nominee said the 1985 memos expressed his personal views or an advocate's work for the government, and do not necessarily indicate how he might rule on the Supreme Court.

Meanwhile, conservatives rallied Sunday night in Philadelphia in defense of religious liberty and in favor of reforming the federal courts.

"Justice Sunday III" was held in the state where Alito, who is generally supported by conservatives, sits on the 3rd U.S. Circuit Court of Appeals.

Sen. Rick Santorum, R-Pa., told the gathering that liberal judges are "destroying traditional morality, creating a new moral code and prohibiting any dissent."

"The only way to restore this republic our founders envisioned is to elevate honorable jurists like Samuel Alito," he said. "Unfortunately, the Democrats on the Judiciary Committee seem poised to drag these hearings into the gutter, so they can continue their far-left judicial activism on the Supreme Court."

The Rev. Jerry Falwell and Focus on the Family founder Dr. James Dobson also attended the gathering at Greater Exodus Baptist Church.

Across the street, about 150 protesters held signs and chanted. Organizers, including AIDS activists and abortion-rights supporters, maintain sponsors of "Justice Sunday" back a dangerous mixing of church and state and an agenda that threatens civil rights.

Besides abortion, issues likely to dominate the hearing this week include:

• Executive powers. Many liberal groups say Alito's rulings and writings have shown too much deference to the executive branches of state and federal governments. In a 2000 speech, Alito embraced the theory of "the unitary executive," which imbues the presidency with expansive powers.

In 1986, as deputy assistant attorney general in the Office of Legal Counsel, Alito advocated having the president issue statements about the meaning of statutes when he signs them into law, a move some consider a violation of the separation of powers.

"The President's understanding of the bill should be just as important as that of Congress," Alito wrote. Spelling out those thoughts "would increase the power of the Executive to shape the law."

Specter, who plans to hold hearings into President Bush's expanded use of the National Security Agency for domestic spying, said Sunday on CBS' "Face the Nation" that the question of presidential power "will be very, very important" at Alito's hearing.

• Alito's credibility. At the 1990 confirmation hearing for his seat on a federal appeals court, Alito told senators he would not rule in cases involving the Vanguard Group or Smith Barney, firms that have handled some of his investments. However, he ruled in a 1996 case involving Smith Barney, and a 2002 case involving Vanguard.

Democrats agree Alito did not profit from the cases, but they have complained about his explanations. Concerning Vanguard, Alito has said he was not required to recuse himself because there was no conflict of interest; the 1990 promise applied only to his first few years on the bench; and a courthouse computer program failed to alert him to the possible need to step aside.

• Commerce and gun control. Alito wrote in a 1996 dissent that Congress did not have the power under the Constitution's commerce clause to pass a law banning possession of machine guns, arguing that there was no evidence the mere possession of such weapons affected interstate commerce.

"He was one of the very few [appellate-court judges] to say that the federal government can't regulate machine guns," Schumer said Sunday. The federal government "has regulated machine guns since the days of John Dillinger in 1936."

Information on Justice Sunday III was provided by The Associated Press. Additional material from the Los Angeles Times is included in this report.