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Where Does Alito's Advocacy End?--A Commentary by Lincoln Caplan

(This essay originally appeared in the January 9, 2006, edition of the Hartford Courant.)

Where Does Alito's Advocacy End?
By Lincoln Caplan, Knight Senior Journalist at YLS

With Samuel Alito the second Supreme Court nominee in a row to have significant experience in the solicitor general's office, the Justice Department lawyers who represent the government before the justices are in the spotlight. There's wide agreement that the solicitor general and his lawyers are no ordinary advocates and that they have a special relationship to the court.

The adversary system usually depends on each side having strong advocacy. To ensure that an argument for a client won't be weakened by any misgivings his lawyer has about it, advocates aren't limited to arguing what they believe is right. But the solicitor general and his lawyers have long held themselves to a different standard. That's at issue in a controversial case that Alito will be asked about during his confirmation hearings.

Twenty years ago, during the Reagan years, Thornburgh vs. American College of Obstetricians and Gynecologists was decided by a 5-4 vote. The court majority reaffirmed the right to abortion established in Roe vs. Wade. Charles Fried, the acting solicitor general, stirred an intense controversy when he advocated that the justices overturn Roe. The case figures in Alito's career because he wrote a key memo about what the acting solicitor general should do.

Alito predicted correctly "that the court would react with hostility" to a call for reversing Roe. But Alito regarded the case as an "opportunity to advance the goals of bringing about the eventual overruling of Roe vs. Wade." Soon after, when he applied for another job at the Justice Department, he indicated that his criticism was heartfelt. Alito wrote that he was "particularly proud of my contributions in recent cases" when the government argued that the Constitution "does not protect a right to an abortion."

In December, Arlen Specter, the Senate Judiciary Committee's chairman, said he asked Alito about the abortion memo when they met during the nominee's Senate rounds. Specter reported afterward, "He raised a sharp distinction, as he put it, between his role as an advocate and his [current] role as a judge."

For lawyers in the solicitor general's office, however, that distinction doesn't exist - and didn't when Alito was there. The office's special relationship to the Supreme Court, explained Seth Waxman, a Clinton solicitor general, is "not one of privilege, but of duty." The duty is to provide counsel on what the solicitor general and his lawyers think the law should be.

But that counsel involves striking a balance between principle and practicality. Although the court sometimes boldly makes new law, it usually maintains a balance between stability and change. How the law should and can develop at a given moment is very much guided by the court's controlling precedents.

Notably, however, Alito was in the office when the solicitor general's respect for that view declined. To Charles Fried, the law was not necessarily what the Supreme Court said it was. The recent prevailing attitude, Fried commented in 1985, was that judges should have "the power to come in and make everything right." Because Fried believed that courts had acted as if they weren't constrained by law, said Philip Heymann, later a deputy attorney general, Fried thought he didn't have "an obligation to the courts as much as to the law." For the solicitor general's office, this shift about courts was dramatic.

The abortion case for which Alito wrote his memo was at the drama's center. We don't know exactly what Alito told Specter in December, but in trying to avoid getting tangled in Roe's web, Alito seems to have explaining to do about one of two matters.

He might have meant to disavow his criticism of the abortion ruling by claiming he was acting as an advocate when he wrote his memo. If so, Alito would have a problem with the Bush base because the president's supporters favor the position Alito would be recanting.

He would also have a credibility problem because his memo and job application make it hard to believe that, when Alito wrote them, he didn't want Roe overturned.

Or he might have been repudiating what sets solicitor general lawyering apart, because an assistant to the solicitor general was unlikely to map out a route to overturning Roe unless he wanted to help the solicitor general and the court get there. If so, Alito would legitimize doubts among liberals and moderates about whether his conservatism is truly tempered by the moderation that has generally defined solicitor general lawyering.

For the centrist senators who might determine whether Alito gets confirmed, the question of how much he tempers his conservatism with moderation is critical. What Alito meant to do in the abortion memo is likely to tell a lot about how he would approach the law as a justice.

Lincoln Caplan, the editor and president of Legal Affairs magazine and the Knight Senior Journalist at Yale Law School, is the author of "The Tenth Justice: The Solicitor General and the Rule of Law" (Knopf, 1987).