By Emilie Lounsberry,The Philadelphia Inquirer

PHILADELPHIA – Samuel A. Alito Jr. is Catholic, and his mother has said he opposes abortion. And when he sought a Justice Department promotion in 1985, he expressed support for the view that the Constitution “does not protect a right to an abortion.”

But Alito, the federal appeals judge nominated to succeed Justice Sandra Day O’Connor on the nation’s highest court, has shown respect for precedent. In a 1997 ruling, he said he agreed with the “essential point” his fellow judges had made: That the Supreme Court has held that a fetus is not a “person” under the 14th Amendment.

Alito’s rulings on the Philadelphia-based U.S. Court of Appeals for the Third Circuit offer no clear signs whether he would move to affirm or overturn “Roe v. Wade, the landmark 1973 abortion-rights ruling. But newly released documents from his tenure with the Justice Department triggered more intense questioning Tuesday on Capitol Hill.

Sen. Dianne Feinstein, D-Calif., an abortion-rights supporter and the only woman on the Judiciary Committee, told The Associated Press that Alito told her he had merely been “an advocate seeking a job” when he made his 1985 comments about abortion.

“He said first of all it was different then,” she said. “He said, “I was an advocate seeking a job, it was a political job and that was 1985. I’m now a judge, I’ve been on the circuit court for 15 years, and it’s very different. I’m not an advocate, I don’t give heed to my personal views; what I do is interpret the law.”‘

Feinstein said she believed him.

With Alito’s confirmation hearing set to begin Jan. 9, senators as well as liberal and conservative interest groups are trying to figure out Alito’s approach to stare decisis, the Latin term for the legal principle that prior court decisions should be recognized as precedents – and not easily overturned.

“As a lower-court judge, he has to be in lock step with precedent,” said Jeffrey M. Shaman, a constitutional-law scholar at DePaul University in Chicago. “But once he’s on the Supreme Court, he doesn’t have to.”

Alito, 55, has tackled questions about abortion in a number of cases in his 15 years on the appeals court.

He voted in 2000 to strike down New Jersey’s ban on so-called partial-birth abortion, and in 1995 to bar restrictions on Medicaid-funded abortions. And in a key 1991 case, Alito voted to uphold most of Pennsylvania’s abortion-control law, and wrote that it was not an “undue burden” to require a woman to notify her husband before an abortion.

In that case, Planned Parenthood v. Casey, the Supreme Court ultimately reaffirmed the right to abortion, but struck down the spousal-notification provision Alito had sought to uphold.

Shaman said that he thought Alito would have dissented in Roe, and that the big question now was how Alito’s view of stare decisis would come into play the next time an abortion case reaches the court.

“It’s very difficult to figure out where he will come down, because so much depends upon … how much respect he has to whether or not Roe and Casey are established law,” Shaman said. “We don’t get much of a sense about Judge Alito as to where he is with regard to when it’s proper to overrule a decision.”

Susan Low Bloch, a constitutional law expert at Georgetown University, said Alito’s Third Circuit opinions did not offer much insight. “You can tell very little from his court of appeals rulings,” said Bloch, other than “he’s very good at following precedent.”

The newly released 1985 document, she said, will make Alito more vulnerable to questions about his views on Roe. Alito’s long-ago remark, she said, “raises a question of what he would think about overturning it now – 30 years later.”

While his judicial colleagues and former law clerks said he had not tipped his hand on whether he would uphold Roe, they said that Alito, who is known as a stalwart of judicial restraint, would surely give much weight to the 32-year-old precedent.

“He looks at precedent, and follows precedent,” said Third Circuit Judge Leonard I. Garth, a longtime judge who hired Alito as a law clerk in 1976.

Garth said that although the Supreme Court has the authority to overturn precedent, it does so only rarely. “They don’t do it easily, and they don’t do it very often,” said Garth.

Adam Ciongoli, a corporate lawyer in New York who formerly was a law clerk for Alito, said, “I think he would look at Roe as a serious precedent that was decided over 30 years ago, and has been tested in the interim.”

Judge Ruggero J. Aldisert, another of Alito’s colleagues on the Third Circuit, said he would “hate to make any prediction” on Alito’s view, but said Alito has “always been cautious and careful” and “seems to place an important value on precedential authority.”

Aldisert said there is a long line of case law stating that a precedent should not be overturned unless the reason has changed substantially, or is no longer valid.

Thus, he said, he does not believe that the high court could easily overturn Roe.

In the newly released papers, Alito, then a lawyer who argued Supreme Court cases for the Justice Department, was applying in 1985 to become a deputy assistant attorney general in the Reagan administration.

It had been an “honor,” he wrote, according to The Associated Press, to help advance legal positions “in which I personally believe very strongly.

“I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotes should not be allowed and that the Constitution does not protect a right to an abortion.”

Alito described himself in the application as a conservative who believed in judicial restraint, The Associated Press reported.

He said he believed “very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values.”

Twenty years later, Alito is sure to be questioned closely on those words.

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