Top Democrats question Alito's credibility

WASHINGTON -- Key Democratic senators yesterday questioned the credibility of the Supreme Court nominee, Samuel A. Alito Jr., saying that he has not been forthcoming about his involvement in a key abortion case, and that he has been less than candid on other matters.

In a 1985 memo, Alito outlined ways to use a Pennsylvania case to whittle away at the Roe v. Wade decision legalizing abortion. But Alito did not mention the case in his answers to the Judiciary Committee's bipartisan questionnaire, which was made public the same day the National Archives released the memo.

The disclosure heightened suspicions about whether Alito and his White House backers are keeping information from the Senate. Democratic lawmakers are concerned that Alito had promised to recuse himself from a case involving Vanguard -- a mutual fund company in which Alito held hundreds of thousands of dollars worth of shares -- and did not do so.

''The more I learn about Judge Alito, the more concerns I have. A credibility gap is emerging with each new piece of information," Senator Edward M. Kennedy, Democrat of Massachusetts, said yesterday. ''He bears an especially heavy burden at the hearings in January to explain the growing number of discrepancies between his current statements and his past actions."

Kennedy's office noted also that in a 1985 job application, Alito listed his membership in CAP, an organization that opposed admitting women and minorities to Princeton University. Yet, in his questionnaire response released Wednesday, he said he did not remember having been a member.

Another member of the Judiciary Committee, Senator Charles E. Schumer, the New York Democrat, chided the nominee for what Schumer called ''an important omission" in failing to mention the abortion case.

In the 64-page document -- accompanied by 15 boxes of materials -- Alito recounted his work on 34 specific Supreme Court cases, but he did not mention the memo he wrote on abortion.

That memo was made public by the National Archives and was separate from the papers Alito submitted to the Judiciary panel.

''But for the National Archives release . . . your extensive participation in that case would not have come to light at all, especially given the administration's public comments minimizing your role, and its long-time blanket refusal to release documents like your [abortion] memo," Schumer wrote to Alito.

Democrats have fought with the Bush administration over documents involving three nominees to the high court, including Alito, but the White House has held firm, saying some records are subject to executive privilege and should not be made public.

All of Alito's personal records from his four years in the Justice Department's solicitor general's office have been shielded by the White House.

''We are firmly of the view that privilege should not be waived," said a White House spokeswoman, Dana Perino. She noted that several former solicitors general -- including those who served in Democratic administrations -- have signed a letter urging that documents from the solicitor general's office not be made public because officials will be reluctant to make candid recommendations about cases if they believe those comments will be publicized later.

''The open exchange of ideas cannot take place" if lawyers working in the Justice Department have to consider the possibility that their internal correspondence will be made public one day, said M. Edward Whelan III, president of the Ethics and Public Policy Center and a former law clerk for Justice Antonin Scalia.

Alito's abortion memo, written when the Justice Department was considering whether to weigh in on a case involving a Pennsylvania law restricting abortions, laid out a strategy to whittle away at abortion rights until the Roe v. Wade decision legalizing abortion could be overturned.

Senator Patrick J. Leahy, ranking Democrat on the Judiciary Committee, agreed that the memo raised more questions about Alito's past, and said it ''reinforces the need for the Senate to obtain all relevant information about this nominee."

Perino said the White House has never received a formal request for such documents; Leahy spokeswoman Tracy Schmaler said the document request was part of the questionnaire given to Alito.