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It is the ultimate “pointy-head” office, as one former top Office of Legal Counsel attorney puts it, and its rafts of memorandums are almost always as dry and to the point as, say, its opinion on “The Applicability of the Fourth Amendment to Use Electronic Beepers in Tracking Bank Robbery Bait Money,” which Supreme Court nominee Samuel Alito Jr. helped pen in 1986. It was the chance to wrestle with these and similar lively legal issues that inspired Alito to write his now-infamous 1985 application for a deputy assistant attorney general slot at the OLC. There was also the strong encouragement of Charles Cooper, who was the head of the office at the time. “I wanted Sam because Sam had the most disciplined, rigorously honest legal mind I’d ever encountered,” says Cooper, who had just left his job as deputy to William Bradford Reynolds, the head of the Reagan Justice Department’s Office of Civil Rights. Alito, who was then an attorney in the Office of the Solicitor General, got the job. Opponents of Alito’s Supreme Court nomination got something too � a concise, five-paragraph declaration of conservative principles that single-handedly revived an anti-Alito movement that was already flagging just two weeks into his nomination. The single-spaced essay was designed to provide information “pertinent to your philosophical commitment to the policies of this administration,” and Alito obliged, citing the writings of William Buckley Jr. and the 1964 presidential campaign of Barry Goldwater as having the greatest influence on his views, and his disagreement with Warren Court decisions in criminal procedure, the establishment clause, and reapportionment as sparking his interest in constitutional law. Alito added that he considered it “an honor and source of personal satisfaction” that while in the SG’s office, he helped advance legal positions with which “I personally believe very strongly,” including arguments against racial and ethnic quotas and a constitutional right to abortion.
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All in all, it was a mini-manifesto of sorts, one that, with a couple of exceptions (most likely the criticism of reapportionment, which few disagree with anymore), is just as applicable for true believers today as it was when it was written 20 years ago. And its views are just as inflammatory to liberal Democrats as they ever were. “An eager and early partisan in the ranks of ideological activists in his party’s extreme right wing,” screamed a press release from the Senate Judiciary Committee’s top Democrat, Vermont’s Patrick Leahy, on Nov. 14, the day the 1985 application became public. “This,” added a suddenly re-energized staffer for another committee Democrat, “is as good as it gets.” IDEOLOGY ON THE BACK BURNER The irony is that Alito’s ideologically charged application was for a job in a venerable and long-standing Department of Justice office whose mission usually involves nondescript legal analysis. “It was the ultimate mismatch between that application and the job Sam and I were asked to do,” notes Pepperdine University law professor Douglas Kmiec, who was a deputy assistant AG at the OLC with Alito. “Ninety-nine percent of the political appointments in the administration not only believed the things they put down on their job applications, they were then given positions where they were expected to implement them,” Kmiec says. “OLC was designed to be an objective appraiser of the law, a place inside a political administration where policy people can come and say, �OK, we’ll ask the lawyers what the law requires.’ I don’t know how many times I wrote this, but it was multiple times � that �whatever the policy merits of this idea, the law specifies the following.’ “ There were plenty of people in the Reagan administration who thought the line-item veto was great policy. But the OLC said it was unconstitutional. The 1988 opinion “did not please Reagan at all,” says Cooper, now a partner at Cooper & Kirk, who wrote the lengthy memorandum. Ten years later, the OLC opinion was effectively validated by the Supreme Court, which ruled that the Line Item Veto Act of 1996 was unconstitutional. The line-item veto was not just a simple exercise in discretionary authority, the Court said; rather, by vetoing a specific line item, the president was, in effect, repealing a law that could really only be repealed by the regular legislative process. Still, politics were never far away. Cooper’s slot, that of the assistant attorney general for the OLC, was a presidential appointment, and most of the deputy assistants, people such as Alito and Kmiec, were also political appointees and, as such, were vetted by the White House Presidential Personnel Office. “You couldn’t get a political job in the Reagan administration if you didn’t have some support of the Reagan agenda,” notes Mark Levin, who runs the Landmark Legal Foundation but was then an associate deputy attorney general who helped hire noncareer employees at Justice. Alito, says Levin, was “pretty typical. People coming into the administration had either campaigned for the president or had some long association with the conservative movement.” Adds Cooper, whose personal request for Alito had to go through Levin’s office, “If Alito had said that he’d voted for Mondale or Carter, I would have been rejected.” Alito’s position as deputy assistant AG at the OLC was the first political job he held � and the only one besides U.S. attorney for the District of New Jersey, a position to which he was appointed in 1987. His supporters say that that fact, in part, accounts for the job application’s intensely ideological tone, since, without a political track record, Alito had to put his best conservative face forward. His opponents argue that the application reveals his true face as well, and they worry that those juridical opinions will find their way into future Supreme Court decisions. Those who worked with Alito at the OLC say that despite his political position, he did not have a political agenda. “To be honest, I was surprised [by the application], only in the sense that when I worked with him, he seemed to be the least political deputy in the office,” says Bradford Clark, a law professor at George Washington University who was an OLC attorney under Alito. PREVAILING WINDS But the OLC does shift with the ideological balance of the administration. Witness the office’s now-discredited Aug. 1, 2002, “torture memo,” which strictly interpreted the definition of “severe” in the federal statute prohibiting torture as limited to pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” Over the past two to three decades, notes University of Virginia law professor John Harrison, a clear division between Republican and Democratic jurisprudence has emerged, with Alito falling firmly into the GOP camp. “You can tell the difference between a Republican OLC position and a Democratic OLC,” says Harrison, who was a deputy assistant AG at the OLC from 1990 to 1993. “It’s originalism versus the living Constitution,” with Republicans putting far more emphasis on the language of the statute that is being interpreted � not the intent of the legislature as outlined in the legislative history. “If you use legislative history, you will start reading your own views into it because the intent is more elastic. “OLC is a legal operation, to be sure,” Harrison continues, “but if you’re in a Republican administration, they need to know your methodology. They want to make sure these jobs go to friends of the team.” Since Alito had already been a federal civil servant for nearly 10 years, as he notes on his job application, he was prevented by the Hatch Act from taking part in any partisan political activity, though he does mention that he made “the sort of modest political contributions that a federal employee can afford,” citing the campaigns of four Republicans and two political committees to which he contributed. But the thrust of his application � and the words that his opponents say will come back to haunt him when his confirmation hearings begin Jan. 9 � is the two cases on which he worked while at the SG’s office, of which Alito said he was “particularly proud.” Senate Democrats as well as opponents believe those cases, which were not identified on the application, are Wygant v. the Jackson Board of Education, which ruled that race-based layoffs violate the equal protection clause, and Thornburgh v. the American College of Obstetricians and Gynecologists, which struck down certain state-imposed abortion restrictions. The U.S. government, in an amicus brief, opposed race-based layoffs in the Wygant case. In the Thornburgh case the government argued that Roe v. Wade‘s tenuous constitutional moorings make the principle of stare decisis less than sacrosanct. “A decision as flawed as we believe Roe v. Wade to be becomes a focus of instability,” the government wrote in its brief, “and thus is less aptly sheltered by [the doctrine of stare decisis] from criticism and abandonment.” If Alito’s jurisprudential views match those on the Thornburgh brief � and at least in 1985, Alito indicated that they do � then the job application provides the Judiciary Committee with the type of window into a future justice’s thinking that, since the failed nomination of Robert Bork, has become almost nonexistent. “This is not a personal belief that �I don’t like abortion,’ ” says Elliot Mincberg of People For the American Way, which is vigorously fighting the Alito nomination. “This is a personal legal belief about how the Constitution ought to be interpreted.”


T.R. Goldman can be contacted at [email protected].

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