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Insight into Alito

November 16, 2005

NOMINEES TO THE SUPREME COURT are almost always lawyers, which means they're good at not answering questions. And senators are by definition politicians, which means they're good at not asking them. So at confirmation hearings, the senators give speeches, the nominee gives compliments, and too often a nominee's views are no clearer after the hearings than they were before.

But the hearings for Samuel A. Alito Jr., President Bush's nominee to replace Justice Sandra Day O'Connor, threaten to be interesting. The person to thank for this turn of events is none other than Alito himself -- albeit the Alito of two decades ago.

In November 1985, Alito applied for a job as deputy assistant attorney general. The application included a line asking for "information that you regard as pertinent to your philosophical commitment to the policies of this administration." Alito, then working as a lowly assistant to the solicitor general, complied by writing a tidy 500-word essay that contains this sentence: "It 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."

Elsewhere in the memo, he mentions a few of those positions. He does not believe in "racial and ethnic quotas," the constitutional right to an abortion or the Warren court. He likes Edwin Meese III (then attorney general) and National Review magazine.

None of this is very surprising, of course. But the essay provides Alito's opponents and supporters alike with incontrovertible evidence of his views on controversial matters nominees normally don't like to discuss. Just as important, it robs Alito of a few of the excuses that nominees usually trot out when asked about such things.

Alito cannot say, as Clarence Thomas did, that he has no position on abortion. He cannot say, as John G. Roberts Jr. did when confronted with memos from his past, that he was stating not his personal views but those of the administration he worked for. And he cannot say, as has just about every nominee in the past quarter of a century, that his personal views are separate from the performance of his official duties.

There are still plenty of excuses available, and Alito has already begun to use some. According to Sen. Dianne Feinstein (D-Calif.), he said he was just "an advocate seeking a job" when he wrote his essay. Sen. Edward M. Kennedy (D-Mass.) said Alito told him that he was now "older" and "wiser." And Alito can always argue that, as his 15 years as an appellate judge have shown, he knows the role of a justice is to be less a partisan advocate than an impartial arbiter.

Alito's essay is sure to come up at his hearings. Naturally, he is free to qualify it or expand on it, but it would be a shame if he dismissed it. Against all odds, it could be the starting point of an honest debate.

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