Alito's 1985 Job Application Declares His Principles
Alito's 1985 Job Application Declares His Principles
“I am and always have been a conservative”
Every Supreme Court confirmation process presents some surprises. For recent nominees who served in the White House or the Department of Justice—John Roberts, Samuel Alito, Elena Kagan, Neil Gorsuch, and Brett Kavanaugh—the executive-branch records that the White House provided to the Senate were a promising source of surprises.
Senate Democrats opposing Samuel Alito’s nomination to the Supreme Court in 2005 were hoping that records from his service in the Department of Justice two decades earlier would provide them powerful ammunition. They might have thought themselves very lucky two weeks after his nomination when they received a remarkably forthright statement by Alito of his conservative political and legal views.
To be sure, Alito’s statement was twenty years old. But for the first time since the defeat of Robert Bork’s Supreme Court nomination in 1987, a Supreme Court nominee was on the record stating that he believed—indeed, “personally believe[d] very strongly”—that “the Constitution does not protect a right to an abortion.”
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“I am and always have been a conservative.” So began the 500-word essay (pp. 16-17 here) that Samuel Alito submitted to the White House’s Office of Presidential Personnel on November 15, 1985.
Three days earlier, the Senate had confirmed Ronald Reagan’s nomination of Charles J. Cooper to head the Department of Justice’s Office of Legal Counsel—the same prestigious position that William H. Rehnquist and Antonin Scalia had once held. Cooper would be Attorney General Edwin Meese’s top lawyer. He ardently wanted Alito to be his deputy.
Over the previous four years, Cooper had come to know Alito well and to admire his brilliant legal mind. Cooper had been chief lieutenant during those years to William Bradford Reynolds, the assistant attorney general for civil rights. Alito had been a line lawyer in the Office of the Solicitor General, briefing and arguing Supreme Court cases as an assistant to Ronald Reagan’s first Solicitor General, Rex E. Lee.
Deputy positions in the Department of Justice—positions one level below Senate-confirmed officials—are formally filled by the Attorney General. But the White House’s Office of Presidential Personnel (OPP) vets all proposed deputies, as well as candidates for other non-career (“political”) positions throughout the administration, to ensure that they are supportive of the president.
For the eight years since he finished a judicial clerkship in 1977, Alito had been a career lawyer in the Department of Justice: four years as a federal prosecutor in New Jersey, then four years as an assistant Solicitor General. There was nothing in his résumé to indicate that he was a Reagan conservative. What’s more, the Solicitor General’s office had become notorious within the Reagan White House as a bastion of opposition to conservative legal principles. So Alito had to prove his bona fides to OPP.
In his essay, Alito summarized his political views in a succinct sentence:
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.
“In the field of law,” he stated, “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 explained that he had “developed a deep interest in constitutional law” in his college years, “motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment.”
Alito expressly made clear that he was not part of the resistance movement inside the Solicitor General’s office:
[I]t has been an honor and 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 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. [Emphasis added.]
He added:
I am a member of the Federalist Society for Law and Public Policy and a regular participant at its luncheon meetings and a member of the Concerned Alumni of Princeton University, a conservative alumni group.
One month later, OPP gave its approval to Attorney General Meese’s appointment of Alito to be Cooper’s deputy.
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Exactly twenty years to the day after Alito submitted his job application to OPP, the New York Times reported on its release to the Senate:
Applying for a promotion in the Reagan administration 20 years ago, Samuel A. Alito Jr. described himself as a thoroughgoing conservative “particularly proud” of contributing to cases arguing “that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion.”
Senator Patrick Leahy, the leading Democrat on the Judiciary Committee, contended that Alito’s statement showed him to be “an eager and early partisan in the ranks of ideological activists in his party’s extreme right wing.” Two “Republican senators who support abortion rights,” Olympia Snowe and Susan Collins, “expressed sharp concerns about the statement.”
If Democrats were ever going to try to muster a filibuster against the Alito nomination, this would have seemed an apt time. Democratic leader Harry Reid and Judiciary Committee members Teddy Kennedy and Chuck Schumer raced to the Senate floor the next day to offer sharp criticisms of Alito’s nomination and of his 1985 statement. But having so discredited the filibuster by their profligate resort to it against George W. Bush’s federal appellate nominees, they didn’t dare to unleash it against Alito. On the contrary: Reid expressed his dismay that Senate majority leader Bill Frist was threatening to abolish the filibuster when “no Democrat has even raised the issue”:
The majority leader should put his sword back in its sheath and let the Senate move forward on this nomination without idle threats. Let’s not talk about changing the Senate rules illegally. Let’s not start talking about blaming the Democrats for something [i.e., a filibuster] in which they are not engaged.
(Whether Reid ever actually believed that “changing the Senate rules” via majority vote was “illegal[]” is doubtful. If so, he held a different view eight years later when, as we shall see, he led the momentous effort to abolish the filibuster for lower-court and executive-branch nominees.)
Kennedy, in his turn, could say only that he looked forward to “learn[ing] a great deal more” about Alito’s “basic commitment to core constitutional rights” at the confirmation hearing in January 2006, and Schumer similarly argued that Alito’s 1985 statement “increase[d] his burden to answer questions fully and forthrightly in the hearing.”
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With the proliferation of email and texting, the sheer quantity of executive-branch records has expanded massively from the time of Samuel Alito’s service in the Department of Justice four decades ago. Who knows what message being sent right now might cause a Supreme Court nominee some difficulty in twenty years?
But the quality of a Supreme Court nominee counts for a lot in the process. With the abolition in 2017 of the Senate filibuster of Supreme Court nominations, majority control of the Senate counts for even more. So long as a president is submitting a nomination to a Senate controlled by his party, whatever surprises might be generated by release of the nominee’s executive-branch records will be unlikely to disrupt the nomination.