Nominee's missing thesis recovered

Correction appended

The senior thesis of Supreme Court nominee Samuel Alito '72, which along with some 300 others was lost during the 1970s, resurfaced Monday when Alito's thesis adviser provided a copy to the University.

Walter Murphy, the McCormick Professor in Jurisprudence Emeritus, sent a copy of the thesis to the University's Mudd Manuscript Library. The document's preface was made available Monday night, and the full 134-page document will be available today.

"Writing a senior thesis about the Italian Constitutional Court is not as absurdly ambitious as writing one all about the United States Supreme Court," Alito conceded in his preface.

At a time when observers are clamoring for signs as to how Alito might rule as a justice, the preface contains few clues, though Alito did write that "the myth of the judge as an automaton, as disinterested finder of the law, is probably stronger today in Italy than in America."

Billing his thesis as an "introduction" to Italy's highest court, Alito said he would attempt to remedy a dearth of scholarship on constitutional law in the country. While much of the document deals with how the court came to be and the history of its justices, one chapter focuses specifically on the court's work on questions of church and state.

"I chose to investigate the Court's work in this area because it is important, because it has probably been the most controversial, and because it is the area in which the clash of interest groups can be observed most clearly," Alito wrote.

In an interview with The Daily Princetonian on Monday, Murphy said that Alito's thesis was one of only about a half-dozen he kept over the years because of the quality of its scholarship.

"Sam just had to start from scratch," he said. "I remember [the thesis] was very good. I've used it over the years in my work."

Murphy, who has kept in touch with Alito over the years and has invited him to guest lecture in classes, also offered some impressions of Alito's stances on key judicial questions.

"He is much more an Anti-federalist where state and national authority clash, more libertarian on issues such as gun control, and much tighter on some matters as the rights of the criminally accused than I," Murphy said in an earlier email message.

"We, however, agree on other important issues, such as finding no constitutional barrier to bans on late term abortions and requiring spousal and parental notification of impending abortions."

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Alito's ruling in the 1991 case Planned Parenthood v. Casey, which challenged Pennsylvania's requirement that women seeking abortions notify their husbands, has become a focal point in the debate.

In his lone dissent, which was not supported in a subsequent decision by the Supreme Court, Alito wrote that there existed "a husband's interest in the fetus in a sufficient percentage of the affected cases to justify the enactment of this measure."

Murphy said that because the Supreme Court regularly makes "critically important decisions that affect public policy in the United States ... it's perfectly proper to ask questions of a nominee what he or she thinks of these issues."

What Murphy calls his and Alito's "fundamental difference concerns reliance on what is euphemistically (and foolishly) called 'original understanding,'" Murphy said in his email. "We don't know and, more crucially, can't know how white American males 'understood' the Constitution in 1787-88 beyond what the text itself says in its Preamble."

President Bush, who previously promised to appoint only "strict constructionists" to the Supreme Court, earlier praised Alito for his "deep understanding of the proper role of judges in our society."

"He understands that judges are to interpret the laws, not to impose their preferences or priorities on the people," Bush said when announcing Alito's nomination.

Many observers have pointed out similarities between Alito and Antonin Scalia, the court's current arch-conservative and constructionist justice, giving Alito the nickname "Scalito."

But Murphy rejected those comparisons.

"Sam is his own man," Murphy said. "He'll never be 'Scalito.' And then it's a gross insult to say in the mold of [other conservative and constructionist justice] Clarence Thomas. Their IQs are so radically different ... We're not talking about someone in Sam's intellectual league."

Correction

The original article mistakenly reported that Walter Murphy said he and Alito agreed that Roe v. Wade, the landmark 1973 abortion-rights case, was wrongly decided. The error was a result of a misinterpretation of a statement Murphy made about his personal beliefs on Roe. In an interview Tuesday morning, Murphy said: "Sam and I have never talked about Roe v. Wade, that I recall."