FOX News - The Big Story With John Gibson - How Does Supreme Court Nominee Alito View Abortion?

November 14, 2005
FOX News - The Big Story With John Gibson
Supreme Court Nominee Alito and Abortion

JOHN GIBSON, FOX NEWS HOST:  Our other big story today, the president's pick for the Supreme Court. A newly released document shows that in 1985, Samuel Alito wrote that the constitution does not protect the right to an abortion. You can be sure this has gotten a lot of attention on both sides of the debate.

FOX's Megyn Kendall live in our Washington newsroom with the story. So, what is this, Megyn?

MEGYN KENDALL, FOX NEWS CORRESPONDENT: Hey there, John.

Well, here's the deal. Alito as filling out an application for a job. This is on the heels of a stint he did in the solicitor general's office. Those are the governor's appellate lawyers.

He was gunning for a job with then-Attorney General Ed Meese. And Alito, who described himself on the application as a life-long conservative Republican, made clear he supported the views shared by Meese and more generally, the Reagan administration.

Alito wrote of his work as a government lawyer thus far, touting his support of legal positions in which he, quote, believed very strongly, including things like racial quotas and abortion.

Alito made his own position, quite clear, saying, quote, 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.

Alito named William F. Buckley, Jr., dubbed by some as the godfather of modern American conservatism, as one of his greatest influences. And said, he believes in small government, free enterprise, and a limited federal judiciary.

In the field of law, he wrote, I disagree strenuously with the usurpation by the judiciary of decision-making authority that should be exercised by the branches of government responsible to the electorate.

Now, abortion rights groups already are saying that Alito's remarks are evidence he will, in fact, overrule Roe v. Wade. But, his supporters point out that Alito has upheld abortion rights in the past, while on the bench, which is the relevant frame of reference, his 15 years as a judge.

And they say, irrespective of his personal views, what matters is whether Alito will respect established Supreme Court precedent. Alito has said he will, but that is, of course, by no means, an actual promise on how he would rule if Roe v. Wade were to be revisited with him on the Supreme Court. John?

GIBSON: Megyn Kendall. Megyn, in Washington. Megyn, thanks very much.

So, does this document really give us any insight into whether Judge Alito would uphold or overturn Roe v. Wade.

Let's ask, Jay Sekulow, chief counsel for the American Center of Law and Justice, and Julian Epstein, a Democratic attorney.

So Jay, I suppose you're going to argue that it doesn't. Why not?

JAY SEKULOW, CHIEF COUNSEL, AMERICAN CENTER OF LAW AND JUSTICE: Well, because you never know how a judge is going to rule on an individual case.

I mean, what you've got is Judge Alito when he was working in the Department of Justice and applying for the job with General Meese. Basically said what Byron White said, and that was the Constitution doesn't recognize this right to abortion.

Justice Ginsburg, by the way, leveled the same criticism regarding the underpinning of Roe v. Wade. She supports the right to abortion, but recognized that it doesn't come out of the Constitution the way it was announced in Roe.

So, look, you never know how an individual nominee's going to rule in a particular case. He's had 15 years worth of judicial opinions to look at. I am optimistic though, I will be quite frank, that he's got the right kind of judicial philosophy. And that is a conservative judicial philosophy, so when cases like partial-birth abortion, and some of these other cases come up ,he's going to recognize that Congress does have a real role to play here.

GIBSON: Julian, I thought the whole deal on this was that justice nominees might have an opinion about something, and may have tipped it off in some earlier writing. But, it all hinges on the particular case, and that a case may require that they go a different way than they've indicated earlier in some earlier letter, like in this case. Don't you agree with that?

JULIAN EPSTEIN, DEMOCRATIC ATTORNEY: I do, and I think that it's no surprise that he would be personally -- he would have a personal belief that the right to an abortion is not found in the Constitution.

However, if you look at three major decisions, both the spousal notification, the partial-birth abortion case in New Jersey, and the wrongful death case, it was clear that Alito was more on the side of the Roe view of the world than he was on overturning Roe.

The question is, he may take that position as an appeals court judge. The real question is, as a Supreme Court justice, would he attempt to overturn the Roe jurisprudence.

GIBSON: Have you come to a conclusion?

EPSTEIN: The question is whether he'd dance around that. But, I think. I think that his history shows that he can separate his own personal view about whether there's a constitutional right, from his judicial decision making in three major cases.

GIBSON: Jay, isn't this a little strange for you? I mean, you would, I think admittedly, avowedly, like to see a justice who would overturn Roe. But, you can't say, here, I got one.

SEKULOW: Well, here's what I can say. The president said he was going to nominate someone with a conservative judicial philosophy. You've got people like John Roberts now serving as chief justice of the Supreme Court in the United States.

Scalia, Thomas, the late Chief Justice William Rehnquist, Byron White, all opposed this Roe-recognized right to abortion. I'm not so sure that that's the likely case to come up, thought. I agree with Julian. The cases that Julian mentioned are the more likely cases. It's not the direct challenge on Roe that you're going to see, it's the parental notifications case, which is up in the Supreme Court, by the way, right now. So, he's clearly on that one, going to say, I'm not going to give you any indication on how I'm going to vote.

And then you've got the partial birth abortion case, which is now pending on a petition for review to the Supreme Court.

I represent members of Congress in that, and, I think, that there's a case where it's not so much how do you view Roe v. Wade, but how do you view the role of Congress? And is the judge's role a limited role?

And I think Judge Alito understands that.

GIBSON: Julian, I got to ask you before I run out of time.

Julian, before I run out of time, do you suspect that this memo is the worm hole into Alito that's going to give his opponents a way to argue against him?

EPSTEIN: Well, no, I don't. And I agree that I think there are other major issues like the role of Congress, Congress' power, the machine gun case was a big issue.

There was one other word I wanted to say real quickly, which was the DNC apparently circulated a memo about Alito saying that he was soft on mobsters.

And I think that whoever was responsible, whether it was the DNC or someone else, that part owes Mr. Alito an apology. I think it was dangerously close to an ethnic slur. I think that kind of stuff has no place in our politics.

And I think Democrats will have plenty of room to criticize Mr. Alito, but I think whoever is responsible for that owes him an apology.

GIBSON: Hey, good going, Julian, you get a little mark.

SEKULOW: Julian gets an A from me.

GIBSON: He gets an A today.

Julian, thanks a lot.

Jay Sekulow, thank you.