Two Profs To Testify as Senate Vets Alito

Harvard constitutional scholar Laurence H. Tribe ’62 said he will “probably not” make a recommendation either for or against Supreme Court nominee Samuel A. Alito Jr.’s confirmation later this week when the professor testifies to the Senate Judiciary Committee.

Tribe’s statement could be a positive omen for Alito, given that Tribe has previously played a key role in blocking a conservative judge from gaining a spot on the high-court bench.

Harvard’s Beneficial Professor of Law Charles Fried, the former solicitor general and Alito’s onetime boss, will also testify at the Senate committee’s hearings and will speak about the nominee’s work in the Reagan administration—including Alito’s May 1985 memorandum on abortion rights.

That memo is significant because Alito’s opponents have used it as evidence to suggest that the nominee would vote to overturn Roe v. Wade.

Alito’s Senate confirmation hearings begin today. Fried and Tribe both say they expect to testify Thursday afternoon or Friday morning.

A ROW OVER ROE

Fried wrote in the New York Times last week that “Alito’s detractors ignore the context and the content” of the 1985 abortion memo. The op-ed also defended a 1984 memo by Alito, in which the future high-court nominee argued that executive-branch officials who order illegal domestic wiretaps should be immune from personal liability.

At the time, Alito recommended that the Reagan administration file a brief urging the Supreme Court to uphold a Pennsylvania law that placed several restrictions on doctors performing abortions and required minors who wanted abortions to obtain the approval of a parent or a judge.

“In the course of the brief, we should make clear that we disagree with Roe v. Wade,” Alito wrote at the time.

But Fried is likely to draw attention to a recommendation against “a frontal assault on Roe v. Wade” in Alito’s memo.

Fried wrote in the Times last week that Alito’s final recommendation was particularly noteworthy because several high-ranking Reagan officials had pressured the solicitor general’s office to directly attack the Roe ruling.

In a phone interview Saturday afternoon, Fried said his prepared statement, which he will submit to the Senate committee today, will make several of the same points as his Times op-ed, but that the format of the prepared statement—which carries no limit on length—allows for a “fuller” exposition than the roughly 800-word Times article.

The solicitor general is the lawyer who represents the federal government in Supreme Court cases. When Fried assumed that post in 1985, Alito was a junior lawyer in the solicitor general’s office. Alito left the office late that year to take a higher-ranking Justice Department post.

Alito, who became a federal appellate judge in 1990, angered abortion-rights advocates the following year with his opinion in Planned Parenthood v. Casey, another case concerning a Pennsylvania abortion law.

That law required married women to receive their husband’s consent before obtaining an abortion, except in cases of spousal abuse. Alito said the law was constitutional because it did not impose an “undue burden” on women.

Alito’s opinion in that case drew fire from Tribe in an op-ed in the Boston Globe in November. Tribe wrote: “Was he perhaps viewing the ‘burden’ on married women in this situation as simply their due, as something that goes with the territory when a woman weds…?”

In the same op-ed, Tribe also blasted Alito’s 2000 ruling declaring that parts of the federal Family and Medical Leave Act violate the 11th Amendment. “You can’t help doing a double-take when you read Judge Samuel Alito’s opinion,” wrote Tribe, who is the Loeb University professor at Harvard.

EXECUTIVE DECISION

But according to Tribe, the family leave ruling and the abortion case will not figure prominently in his prepared statement before the Senate committee. “I can tell you that I don’t plan to repeat the emphasis of the op-ed I wrote, although it’s possible I might mention the abortion and/or family and medical leave cases as part of one or another larger theme,” Tribe wrote in an e-mail.

Instead, Tribe wrote that his testimony would emphasize “the problem of unfettered executive power, and the reasons to worry about Alito in connection with such power.”

By his own count, Tribe has been invited to appear before House and Senate committees “roughly 125 times.” He has testified on 42 occasions, including two Supreme Court confirmation hearings.

In December 1987, he endorsed President Reagan’s nomination of Anthony M. Kennedy to the Supreme Court.

But, three months earlier, Tribe had helped the Senate Democrats plan their drive to block a conservative judge, Robert H. Bork, from gaining a spot on the high-court bench. The professor played the role of “Judge Bork” in a practice session as then-Senate Judiciary Committee Chairman Joseph R. Biden, Jr., D-Del., honed his cross-examination tactics, according to a 1987 Washington Post report. And Tribe “served as the keynote speaker for the opposition” at the Bork hearings, according to a New York Times report that same year.

Fried appeared before the Senate Judiciary Committee in September to advocate the confirmation of John G. Roberts, Jr. ’76 as chief justice.

—Staff writer Daniel J. Hemel can be reached at hemel@fas.harvard.edu.