The Cool Fervor of Judge Alito

Sam Alito wanted a bigger job, but he had a problem. The 35-year-old graduate of Princeton and Yale was working at the Justice Department in 1985 at the height of conservative euphoria over the re-election of Ronald Reagan. But he was not part of what was known as the "secret handshake" crowd—the Administration's tight-knit cadre of Reaganite true believers. He had been one of the young lawyers from élite schools hired without regard to their political leanings by the Solicitor General's office. The Reaganauts suspected many of the career lawyers were liberals hoping to block Reagan's ideas. Worse, Alito had not even worked on the President's campaign or donated money, two tests of loyalty for high-level posts in any Administration.

Still, some at Justice got the impression through informal conversations that Alito was more conservative than he let on, although he rarely talked directly about politics. And they admired his approach to the law. In a department in which even some Reagan disciples were worried that colleagues focused too much on ideology rather than legal reasoning to back their claims, Alito diligently researched every issue, wrote clearly and avoided ideological traps. "I was just very impressed by the disciplined nature of his mind," says Chuck Cooper, a Justice Department official at the time. "He could view a legal issue as objectively and as neutrally as anyone I have ever met."

So when Cooper was named to head the department's Office of Legal Counsel, he immediately thought of Alito to be one of his deputies. The office functions almost as a law firm within the Executive Branch, offering legal advice on the various ideas coming from other presidential aides—the perfect post for a man who focused more on the fine points of jurisprudence than on politics. This was a chance for a big step up. The question was, Could he be trusted?

Alito was given a test. As part of applying for the job, he was asked to write an essay attesting to his ideological credentials. "I am and always have been a conservative," he wrote in uncharacteristically bald prose. With those eight words, along with a note that he was "particularly proud" of memos he had written suggesting limits to affirmative action and abortion rights, Alito sealed the promotion.

He also set the stage for a high-stakes political battle when George W. Bush named him to the Supreme Court two decades later. As Alito's confirmation hearings kick off on national television this week, Senators and viewers will be asking, Is this the man of the memos, whose paper trail includes provocative passages against abortion and in favor of Executive power that have given Democrats and liberal interest groups the ammunition to portray him as a dangerous activist? Or would the high court be getting the more opaque and reserved scholar described by friends and co-workers and suggested by some of his later work?