Bench Memos

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Clinton’s Floor Statement


Senator Clinton’s floor statement is irresponsible demagoguery. Here’s a prime example:

“Judge Alito said it all in 1986 when he was a young lawyer with the Reagan administration. He wrote that in his estimation it is not the role of the federal government to protect the health, safety, and welfare of the American people. Well, I guess that explains the inept, slow, and dangerous response to Hurricane Katrina.”

Yeah, I knew that Alito was the real culprit. He probably even planned the hurricane.

The actual memo that Clinton is apparently referring to is a draft veto message of a bill that would have required states to revise their title forms for automobiles to reflect a car’s odometer reading each time it was transferred. Alito is speaking not in his personal capacity but on behalf of the Office of Legal Counsel. That draft message reflected Reagan administration policies on federalism and was phrased in Reagan’s voice. (The “I” in the draft message is Reagan, not Alito.) It did not offer Alito’s “estimation” on anything.

Showing that she hasn’t done her homework, Clinton also tries to use Alito’s Family and Medical Leave Act ruling against him, and she wrongly states that the Supreme Court later “reached precisely the opposite conclusion.”

And here’s what she had to say on abortion:

“Judge Alito proudly announced his personal opposition to a woman’s right to choose early in his career in the now infamous 1985 job application for a position in the Reagan administration. And although he has tried to distance himself from the comments he made in that document, his time on the bench shows an unapologetic effort to undermine the right to privacy and a woman’s right to choose.”

A few comments on this: First, Alito’s 1985 job application stated his (correct) view that the Constitution does not protect a right to an abortion. It says nothing about his personal view on whether there ought to be a right to abortion as a matter of statutory law. Second, he hasn’t “tried to distance himself” from the views in that application. He has made clear that they were an accurate statement of his views at the time. Third, while on the Third Circuit, he has voted to invalidate a state partial-birth abortion law, and he has cast the deciding vote in favor of a ruling that the Clinton Administration’s Medicaid policies overrode pro-life restrictions in Pennsylvania law. I am very hopeful that he will help to undo the Court’s unconstitutional power grab on abortion, but Clinton’s characterization of his record on the Third Circuit is ridiculous.


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