The Magazine

Alito, Then and Now

Dec 5, 2005, Vol. 11, No. 12 • By TERRY EASTLAND, FOR THE EDITORS
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THE OUTLOOK FOR THE ALITO nomination remains favorable. Even so, there is this short essay Sam Alito wrote in 1985. Senate Democrats and their political and media allies don't like it. Indeed, they think it may provide kindling that will feed a flame that they can blow into a fire mighty enough to consume the nomination. Because the essay is likely to stimulate the toughest questions Alito will hear when he appears before the Judiciary Committee in January, it's worth a close look.

Twenty years ago Alito was wrapping up his fourth year briefing and arguing cases in the Supreme Court as an assistant to the solicitor general. He learned about an opening for a senior position in the Office of Legal Counsel and applied (successfully, as it turned out). The job was a political slot, meaning it was not intended for a career attorney, which Alito had been since joining the Justice Department in 1977. It is possible to move from the civil service to a politically appointed position, but the person making that transition typically must share and be willing to support the administration's policies. The form Alito filled out thus asked him to "provide any information . . . pertinent to your philosophical commitment to the policies of this administration." Another question asked whether the job candidate had ever served on a political committee or been identified publicly with any political organization or candidate or issue. To both questions Alito wrote, "Please see attached sheet," on which he had composed a brief essay.

It began: "I am and always have been a conservative and an adherent to the same philosophical views that I believe are central to this administration." He noted that when he "first became interested in government and politics during the 1960s, the greatest influences on my views were the writings of William F. Buckley, Jr., the National Review, and Barry Goldwater's 1964 campaign." He described "in capsule form" his political views: "I believe very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values." Alito said that he was "a life-long registered Republican" and had made "modest political contributions" to Republicans in his state (New Jersey) running for office, among them Christopher Smith, James Courter, and Jeff Bell. He noted that he was a member of the Federalist Society and that he had submitted articles for publication to both National Review and the American Spectator.

As for legal matters, Alito wrote, "in college [Princeton, 1972], I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment. I discovered the writings of Alexander Bickel advocating judicial restraint, and it was largely for this reason that I decided to go to Yale Law School [class of 1975]." He declared: "I disagree strenuously with the usurpation by the judiciary of decisionmaking authority that should be exercised by the branches of government responsible to the electorate." He observed that "the Administration has already made strides toward reversing this trend through its judicial appointments, litigation, and public debate," and he expressed hope that "even greater advances can be achieved during the second term, especially with Attorney General Meese's leadership." Alito emphasized that it had been "an honor and source of personal satisfaction" to serve in the solicitor general's office during the Reagan administration "and to help advance legal positions in which I personally believe very strongly." He cited "my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."