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Bush Judicial Nominations Watch

Samuel A. Alito, Jr.— Nominated to the U.S. Supreme Court October 31, 2005. Senate Judiciary Hearing held January 9-13, 2006. Judiciary Committee vote held January 24, 2006. Full Senate vote held January 31, 2006. Alito sworn in January 31, 2006.

As expected, the issues of privacy and abortion rights were front and center during the Senate Judiciary Committee hearings for Judge Samuel Alito, which began January 9, 2006.

At several points during the hearings, Alito misled senators and mischaracterized his record on a woman’s right to choose an abortion and the right privacy. Early on during the four days of questioning, Alito responded to a question posed by Senator Diane Feinstein (D-CA) about his 1985 strategy memo on Thornburgh v. American College of Obstetricians and Gynecologists1 saying, “I did not advocate in the memo that an argument be made that Roe be overruled.”2 In reality, while Alito was working in the Solicitor General’s office, he wrote a memo to his superiors recommending that the Reagan administration file an amicus brief in two abortion cases coming before the Supreme Court—including Thornburgh . Alito argued in the memo:

We 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.3

In response to a question posed by pro-choice Republican Senator Arlen Specter (PA) as to whether he would overturn Roe v. Wade were the 32-year old abortion precedent to come before the court, Alito said he would approach the question of whether the Constitution protects a woman’s right to an abortion with “an open mind.”4 This seems highly unlikely given that 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.5

While Alito said that long-standing decisions deserve great respect, he stopped far short of saying that Roe could not be overturned, instead saying that the doctrine of following precedent is not “an exorable command.” This is the same language that former Chief-Justice William Rehnquist once used in arguing to overturn Roe.6

The Senate voted 58 to 42—the narrowest margin since Clarence Thomas’ 1991 nomination—to confirm Alito to succeed the retiring Sandra Day O’Connor. The vote was largely along party lines; four Democrats—Senators Robert Byrd (WV), Kent Conrad (ND), Tim Johnson (SD), Ben Nelson (NE)—voted in favor of Alito’s confirmation and one Republican—Senator Lincoln Chafee (RI)—voted against it. On January 31, 2006, Alito was sworn in as the 110 th Supreme Court Justice.

Joseph DiNorcia, president and CEO of SIECUS, said of Alito’s nomination, “with a record so far outside of the mainstream, Judge Alito should have never been confirmed to a life-time appointment on the Supreme Court. Alito’s confirmation disrupts the critical balance of the Supreme Court and puts at serious risk the future of sexual and reproductive health and rights, including access to comprehensive information and education about sexuality, family planning services, and safe, legal abortion. SIECUS applauds the 42 Senators who understood the gravity of this nomination and voted against confirmation.”

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  1. “Alito: “The Constitution Does Not Protect a Right to an Abortion,’” Public Policy Update, (Washington, D.C.: SIECUS, December 2005), accessed 26 January 2006, <>.
  2. “Transcript: U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito’s Nomination to the Supreme Court, Part II of III,” , a ccessed 16 January 2006, <>.
  3. Special Report: The Record and Legal Philosophy of Samuel Alito, (Washington, D.C.: People for the American Way, January 2006), accessed 16 January 2006, <>.
  4. Charles Babbington and Jo Becker, “Alito Said He’d Keep ‘An Open Mind’ on Abortion,” Washington Post, 11 January 2006, A01.
  5. Jesse Holland, “Documents Give Insight Into Alito’s Views,” Associated Press, 14 November 2005.
  6. Babbington and Becker.