Saturday’s Washington Post article (by Charles Babington) on Judge Samuel Alito and his 1985 memos is among the most biased and irresponsible pieces of journalism that I have seen in some time. It is increasingly clear that the Washington Post thinks that it is fulfilling its reporting function by serving as a mouthpiece for the left-wing groups attacking Judge Alito.
For context, let’s begin by recognizing a glaring contradiction in the positions advanced by Alito’s critics. On the one hand, the Left says that whether or not Roe
was rightly decided, the passage of time and intervening cases like Casey
mean that it should be maintained. On the other hand, the Left says that it is absurd that someone who 20 years ago opined that Roe
was wrongly decided might find that the passage of time and intervening cases like Casey
mean that it should be maintained.
Let’s further recognize that there are plenty of folks, like liberal law professor Cass Sunstein, who think that (in Sunstein’s words) “although Roe was wrong, and a big mistake, the Court should not now overrule it.” These include vigorous critics of Roe like former Solicitor General Charles Fried (Alito’s former boss), who argued in 1985 that Roe should be overturned but who now believe that it should be maintained. I respectfully but vigorously disagree with the Sunstein/Fried position, but the relevant point here is that it is genuinely held by respected legal minds, including those, like Fried, who strongly believed in 1985 that Roe should be overturned.
It follows that Department of Justice attorney Sam Alito’s memo on Thornburgh in 1985 does not have any clear implications for how a Justice Alito would address Roe two decades later. For Alito to point this out is not to “distance himself” from the 1985 memos (as the Post’s headline and second sentence tendentiously charge) but rather to recognize the very point that the Left insists on: that the question whether to overturn Roe now is arguably different from the same question 20 years ago. It is the “[l]eft-leaning groups,” not Alito, who are “ludicrous” in contending otherwise.
Notwithstanding the fact that the Left has consistently lied about and distorted Alito’s record, the Post article does little more than regurgitate the Left’s latest contentions. The second sentence of the article, for example, states that “liberal groups said [Alito's 1985] writings show him to be much more conservative than” John Roberts.
Recall that these are the same left-wing groups who attacked Roberts as a “Neanderthal.” The same groups who expressed horror at his approval of a proposed presidential telegram that stated that Roe “made void all our laws protecting the lives of infants developing in their mothers’ wombs” and that “[o]nce again [as in Dred Scott] a whole category of human beings had been ruled outside the protection of the law by a court ruling which clashed with our deepest moral convictions.” The same groups who attacked Roberts’s criticism of the “so-called ‘right to privacy,’” racial preferences and comparable worth. And so on.
It gets even worse. For example, the article notes that one critic (a longtime abortion activist, as it happens) “said Alito applied his sentiments about abortion rights in 1991, when he ruled [in the Third Circuit decision in Casey] that a married woman must inform her husband before having an abortion.” Obscured in this assertion is the fact that Alito was not imposing his own will but was instead opining that the spousal-notice provision that Pennsylvania (with strong Democrat support) had enacted was constitutional. And what support is there for the assertion that Alito “applied his sentiments”? None whatsoever. On the contrary, the fact that Alito as a judge has ruled against pro-life interests in several cases demonstrates that he does not indulge any pro-life policy preferences that he may (or may not) have.
The Post’s article is simply not responsible journalism, and it does not even make any serious effort to be.
By the way, I don’t mean to be singling out the Post. I suspect that other newspapers are as bad or worse. I’m focusing on it primarily because it has disproportionate influence in D.C. (and because I find it on my lawn in the morning).
–Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s “Bench Memos” blog on judicial nominations.