Judiciary Committee, Minority Staff
Contact: Tracy Schmaler, 224-7703
See this document at: http://democrats.senate.gov/judiciarycommitteesupremecourt
Fact Check: Alito vs. Alito
In his answers to the Senate Judiciary Committee, Judge Alito has repeatedly sought to paper over his past actions and statements and retreat from his record.
Judge Alito on Choice
Today, in response to questioning by Senator Feinstein, Judge Alito suggested that he would keep an open mind on the right to choose.
Alito: "But when an issue is one that could realistically come up, the people who would be making the arguments on both sides of the issue have a right to have a judiciary of people with open minds. And that means people who haven't announced in advance what they think about the issue and, more importantly, people who are not going to reach a conclusion until they have gone through the judicial process." [1/11/06]
However, in sharp contrast to Chief Justice Roberts's testimony before the Committee during his Supreme Court confirmation hearings, Alito refused to declare Roe the settled law of the land. [Response to Senator Feinstein, 1/11/06]
Chairman Specter. Judge Roberts, in your confirmation hearing for circuit court, your testimony read to this effect, and it has been widely quoted: "Roe is the settled law of the land." Do you mean settled for you, settled only for your capacity as a circuit judge, or settled beyond that?
Judge Roberts. Well, beyond that, it's settled as a precedent of the Court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not. And it is settled as a precedent of the Court, yes. [Confirmation Hearings of John Roberts, page 145]
And, Judge Alito's record raises concerns about his commitment to the right to privacy.
- In the spring of 1985, Samuel Alito, working in the Solicitor General's office, wrote a memo to his superiors recommending that the Reagan Administration file an amicus brief in two abortion cases facing the Supreme Court - including Thornburgh. Alito argued, "[w]e should file a brief as amicus curiae supporting appellants in both cases. In the course of the brief, we should make clear 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 his 1985 application to become a deputy assistant attorney general in the Reagan Administration, Alito wrote, "[I]t has been an honor and a source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan's administration and to help to advance legal positions in which I personally believe very strongly. I am particularly proud of my contribution in recent cases in which the government has argued in the Supreme Court that...the Constitution does not protect a right to an abortion."
Judge Alito on Civil Rights Cases
Alito testified today that, Kithcart "was essentially a case of racial profiling. And I wrote an opinion holding that that was a violation of the Fourth Amendment." [Alito Hearing 1/11/06]
In fact, Alito's opinion in Kithcart was merely a temporary procedural pass. Rather than reverse Kithcart's conviction, Judge Alito, over a strong dissent, sent the case back to the district court to give the government a second bite at the apple. When the case came back to the Third Circuit, Alito affirmed Kithcart's conviction. (U.S. v. Kithcart, No. 123046, May 23, 2002)
Judge Alito on Illegal Wiretapping
Yesterday, Alito testified "We were representing former Attorney General Mitchell in his individual capacity. He was being sued for damages. And we were, in a sense, acting his -- as his private attorney. And this was an argument that he wanted to make." [Response to Senator Leahy 1/10/06]
Actually, in a 1984 memorandum by Samuel Alito, he advised arguing for qualified rather than absolute immunity in Forsyth itself "for tactical reasons," but wrote that he himself believed that officials "should have this immunity." [Memorandum from Samuel A. Alito to the Solicitor General re: Forsyth v. Kleindiendst (June 12, 1984)]