Appeals Judges Claim Samuel Alito Won’t Overturn Abortion Ruling

National   |   Steven Ertelt   |   Nov 3, 2005   |   9:00AM   |   WASHINGTON, DC

Appeals Judges Claim Samuel Alito Won’t Overturn Abortion Ruling Email this article
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by Steven Ertelt Editor
November 3, 2005

Washington, DC ( — Five judges who have served with Supreme Court nominee Samuel Alito on the 3rd Circuit Court of Appeals say the conservative judge will not likely vote to overturn the Roe v. Wade decision that legalized virtually all abortions. However, pro-life observers say what they’ve seen lead them to think otherwise.

In interviews the Associated Press conducted with the judges, they universally described him as honest and fair in his treatment of cases. They say he has a great respect for precedent and none of them say he would vote to overturn Roe.

"There’s no question he’s going to move the Supreme Court to the right because he is conservative," said former Judge Timothy Lewis, who typically sided with liberal members on the court.

"But in tens of thousands of cases that came before us, he faithfully showed a deference and deep respect for precedent," Lewis said. "From private caucus meetings and on the bench, I know he is an intellectually honest man and doesn’t have personal predilections to foist upon the American people."

Pro-life advocates say, however, that Alito could follow the example of John Roberts, the newly minted Chief Justice who told the Senate Judiciary Committee during his hearings that lower court justices have an obligation to follow Supreme Court precedents.

Under that line of argument a newly confirmed Supreme Court justice would be able to revisit long-standing high court cases like Roe.

Still, Judge Leonard Garth, for whom Alito served as a law clerk and eventually became colleagues on the appeals court, said Alito backs laws to limit abortions, like the ones he upheld in 1991, but would not reverse Roe v. Wade.

"Sam is not going to overturn Roe v. Wade," Garth told the Associated Press.

But in 2000, Garth joined a majority of the court in striking down a New Jersey partial-birth abortion ban as unconstitutional. Alito agreed, but blasted the judges for issuing an expansive opinion and holding on to it until the Supreme Court handed-down a precedent setting case invalidating a Nebraska law.

Some pro-life observers have said Alito would have voted to uphold the ban had the appeals court not waited to issue its ruling.

The judges also described Alito as an advocate of judicial restraint and state’s rights — attributes that would put him at odds with the 1973 abortion decision that pro-life advocates say violated both judicial notions.