"I asked him about the line here, 'the Constitution does not protect the right to an abortion.' And he identifies that as a personal opinion, as I said before. And he said that his personal opinion would not be a factor in his judicial decision." -- Sen. Arlen Specter after meeting with Supreme Court nominee Samuel A. Alito Jr.

"It's not personal, Sonny. It's strictly business." -- Michael Corleone in "The Godfather"

WASHINGTON -- Will the confirmation of Judge Alito for a seat on the Supreme Court come down to a variation on Bill Clinton's hairsplitting observation during the Monica Lewinsky scandal that "that depends upon what the definition of 'is' is"?

		Michael McGough is an editor at large in the PG's National Bureau (mmcgough@ nationalpress.com).

That possibility occurred to me Friday when I attended Sen. Specter's peculiar press conference following his "good talk" (Judge Alito's term) with the nominee. Only it wasn't the word "is" that was parsed and picked apart at the press conference. It was the word "personal."

The deconstruction of the P word was occasioned by two 20-year-old documents that have energized Alito opponents. One is a 1985 application for a job in the attorney general's office in which Judge Alito took pride in his contributions to Reagan administration legal arguments "in which I personally believe very strongly," including the contention that "the Constitution does not protect a right to abortion."

The other, disclosed last week by the National Archives, was a memo in a Pennsylvania abortion case in which Judge Alito, then a lawyer in the U.S. Solicitor General's Office, outlined an incremental strategy to bring about "the eventual overruling of Roe v. Wade." At his press conference he relayed Judge Alito's assurance to him that in the latter document he was speaking as an "advocate" for the anti-abortion Reagan administration.

As for the job application with its reference to arguments "in which I personally believe very strongly," Sen. Specter said: "With respect to his personal views on a woman's right to choose, he says that that is not a matter to be considered in deliberation on a constitutional issue of a woman's right to choose, the judicial role is entirely different." Inquiring minds at the press conference (including mine) pressed the senator about how the "just an advocate" defense connected up with Judge Alito's assurance that his "personal" view wouldn't affect him as a judge. The senator's responses didn't completely clarify matters.

Asked if Judge Alito had indicated whether he had had an independent view about the desirability of chipping away at Roe v. Wade, Sen. Specter replied: "He said he was writing it as an advocate, and that his role as a judge would be different.

But in response to a later question, Sen. Specter seemed to indicate that, in 1985 at least, Sam Alito's views about Roe were more than those of an advocate channeling his bosses' views. That is when the senator offered the characterization of Judge Alito's comments that appears at the beginning of this column: that the judge identified as a "personal opinion" the view stated in his job application that "the Constitution does not protect the right to an abortion."

This can't be right. Typically when someone refers to his or her "personal" opinion about abortion, the context is moral as opposed to legislative or judicial -- "I'm personally against abortion but I don't believe it should be against the law" or "I'm personally pro-life but I think Roe v. Wade was correct." A lawyer's "personal" opinion about the constitutional status of abortion is by definition a legal opinion, as Judge Alito's liberal critics were quick to point out.

So what can Judge Alito say to extricate himself from the ball of confusion created by his paper trail from 1985 and Sen. Specter's confusing comments about the "personal" views that the judge will supposedly declare off-limits when he hears abortion cases?

One useful step would be for Judge Alito to stipulate that in 1985 he, like lots of lawyers in the Reagan administration and quite a few outside it, thought Roe was wrongly decided or at least poorly reasoned.

Besides earning him points for candor, such an admission would shift the focus away from the convoluted debate about his "personal" views and towards the issue of precedent so dear to Arlen Specter.

Sen. Specter, a supporter of abortion rights, suggested on Friday that Judge Alito regards Roe as so "embedded" in American culture that it is a sacrosanct precedent like Miranda v. Arizona, the 1966 Supreme Court ruling on police interrogation. But if Chief Justice John G. Roberts Jr. wouldn't go so far as to equate Miranda and Roe at his hearings, it's unrealistic to expect Sam Alito to cross that bridge. But he could say something like this:

"My criticism of Roe v. Wade 20 years ago wasn't just 'personal,' like my preference for coffee over tea. It was business -- legal business. But, as Chief Justice Roberts and Justice O'Connor could tell you, the fact that a judge thinks a precedent was wrongly decided doesn't mean that he or she will vote to overturn it.

"Although I don't like Sen. Specter's term 'super-duper precedent,' I acknowledge that in the 20 years since my memos the 'essential holding' of Roe -- that a right to abortion is protected by the Constitution -- has been reaffirmed by the Supreme Court and is entitled to considerable deference, though I will view any future challenge to that or any other precedent with an open mind. Next question."