http://www.washingtonpost.com/wp-dyn/conte...0801938_pf.html

Democrats Query Nominee On Ethics
At Issue Is Alito's Failure to Recuse Himself Twice

By Charles Babington
Washington Post Staff Writer
Thursday, November 10, 2005; A09



Senate Democrats are pressing Supreme Court nominee Samuel A. Alito Jr. about his rulings on cases that involved financial companies in which he had investments, a sign that ethics questions may play a role in his confirmation hearing.

In letters and private meetings this week, several Democratic senators asked Alito for fuller explanations of why he ruled, as a federal appellate judge, on cases regarding Vanguard and Smith Barney Inc. after promising to recuse himself from those cases. Alito had at least $390,000 in Vanguard mutual funds when he ruled in a 2002 case that favored the company. He also ruled in a 1996 case involving Smith Barney, which was his brokerage firm.

Alito has said that a court computer system failed to remind him to step aside in the Vanguard case. And the White House has argued that the court rulings could not have affected his personal finances in any meaningful way. Democrats concede that point, but say they are troubled that the nominee failed to withdraw from the cases, as he had said he would, to avoid any possible conflict of interest.

The Senate Judiciary Committee's eight Democrats yesterday sent a letter to the chief judge of the Court of Appeals for the 3rd Circuit, where Alito sits, asking for details of the Vanguard case. The request includes "any communication from or to the White House, the Justice Department (including the FBI), or Judge Alito, or anyone else on their behalf, in respect to the reasons why Judge Alito failed to recuse himself, . . . including the recent White House statement regarding a computer failure."

On Tuesday, the committee's most senior member, Edward M. Kennedy (D-Mass.), wrote to Alito asking for an explanation. A background paper issued by Kennedy noted that "ethical issues" helped derail Abe Fortas's bid to become chief justice in 1968 and Clement Haynsworth's 1969 nomination to be an associate justice.

Two Senate Democrats who met with Alito yesterday said they were not fully satisfied with his explanation of the Vanguard matter. Addressing reporters, Sen. Kent Conrad (D-N.D.) said he told Alito he was troubled by the case, and Alito's "response was he just didn't focus on it, that it was a very minor amount [of money involved], that the issue with Vanguard would have no effect at all on his holdings, which is clearly true."

Conrad said he told Alito, "You are ultimately the check on whether or not you kept your pledge. You indicated you would recuse yourself, and then did not." On balance, Conrad said, he was very impressed with Alito. "He got off to a very good start with me," Conrad said.

Sen. Charles E. Schumer (D-N.Y.) said Alito told him about the court's computer glitch, "but there are a few things you have to check out. A part of it relates to how the 3rd Circuit works in terms of telling people when to recuse themselves."

Alito's backers say Democrats are focusing on the recusal question because they are having little success challenging his qualifications or judicial philosophy. Some law professors have written the Judiciary Committee defending his role in the Vanguard case. "In my opinion Judge Alito handled it quite properly, in correcting a situation in which he can be said to have made a mistake about recusal," wrote University of Pennsylvania law professor Geoffrey C. Hazard Jr.

When the Judiciary Committee confirmed Alito to the appellate court in 1990, he promised in writing to disqualify himself from any cases involving Vanguard or Smith Barney. But in 2002, he and two other judges ruled in Vanguard's favor by dismissing a complaint that the company had improperly seized some private accounts and blocked the owner's widow from obtaining the money in them. When the woman complained, the court set aside the judgment and had another panel of judges hear the case.

http://www.washingtonpost.com/wp-dyn/conte...0902073_pf.html

http://americablog.blogspot.com/2005/11/al...eeping-his.html

http://www.washingtonpost.com/wp-dyn/conte...5111002188.html

http://www.boston.com/news/nation/washingt...ionment?mode=PF

http://www.nytimes.com/2005/11/17/politics.../17confirm.html

Debate in Senate on Alito Heats Up Over '85 Memo

WASHINGTON, Nov. 16 - The debate over the Supreme Court nomination of Judge Samuel A. Alito Jr. escalated into a full-fledged fight in the Senate Wednesday as top Democrats sounded new alarms about his approach to the law and Republicans warned that any effort to block a vote on him would be "outrageous."

Partisans on both sides of the nomination were reinvigorated by the disclosure this week of a 1985 memorandum from Judge Alito when he was a member of the Reagan administration and was seeking a promotion. In the memorandum, he professed his strong support for a conservative legal approach to abortion, affirmative action and limits on federal power over the states.

"A picture of Sam Alito is emerging that may explain why the right wing is popping champagne corks," said Senator Harry Reid of Nevada, the Democratic leader, taking a sharply critical tone in his first speech about the nomination on the Senate floor. "We don't have to guess whether Judge Alito's description of himself in that memo would predict what kind of judge he would be. For the past 15 years, Judge Alito has been one of the most conservative federal judges in the country."

Mr. Reid's criticism was quickly followed by floor statements from Senator Edward M. Kennedy of Massachusetts and Senator Charles E. Schumer of New York, both prominent Democrats on the Judiciary Committee. They spoke a day before a coalition of liberal groups is expected to announce plans for a national television advertising campaign opposing confirmation.

A conservative group, Committee for Justice, is expected to announce Thursday its own radio and television campaign attacking one of the leading liberal groups, People for the American Way, for its stands on issues like same-sex marriage, flag burning and the recitation of "under God" in the Pledge of Allegiance.

Mr. Reid also took aim at a vow by Senator Bill Frist of Tennessee, the Republican leader, that if Democrats stopped Judge Alito's nomination with a filibuster - blocking the 60 votes needed under Senate rules to end debate - he "will not hesitate" to deploy a procedural tactic to eliminate the 60-vote requirement, a move known as "the nuclear option."

"If members of the Democratic minority persist in blocking a vote on Alito's nomination, the Senate will have no choice," Mr. Frist wrote in an opinion column published on Nov. 9 in The Chicago Tribune.

Mr. Reid fired back Wednesday in his floor speech. "The majority leader should put his sword back in its sheath," Mr. Reid said, calling Mr. Frist's warnings "idle threats." It is "silly" to debate the idea two months before confirmation hearings, he said.

Still, Mr. Reid has refused to rule out a filibuster, and the coordinated floor speeches also laid the groundwork for the unified opposition that a filibuster would require.

"It sounds like the fight is on," said Senator John Cornyn, a Texas Republican on the Judiciary Committee.

Mr. Cornyn said Judge Alito's 1985 memorandum should be irrelevant to his confirmation. "That is the whole point," the senator said. "Judges aren't supposed to impose their personal views from the bench, and I believe he has got a demonstrated track record of not doing so."

Senator Kay Bailey Hutchison, Republican of Texas, said on the floor that the Democrats had implied a threat to filibuster and called it "outrageous." She defended Judge Alito's devotion to a neutral reading of the law, apparently referring to his 1985 memorandum to argue that "he has even gone against what are his stated personal beliefs to adhere to precedent."

In his floor speech, however, Mr. Schumer said that confirmation was far from "a foregone conclusion" and that he found a "troubling pattern" in Judge Alito's decisions.

"In case after case after case, Judge Alito gives the impression of applying meticulous legal reasoning, but each time he happens to reach the most conservative result," Mr. Schumer said.

He cited Judge Alito's rulings in cases involving the scope of federal regulatory power, police searches, sex and race discrimination claims, and abortion rights.

"Every Supreme Court nominee has a high burden," Mr. Schumer said, adding that "for Judge Alito, that burden is triply high" in part because he would succeed Justice Sandra Day O'Connor who has been the court's swing vote on social issues.

Mr. Kennedy expressed concern that in his 1985 memorandum Judge Alito had cited as a major influence Barry Goldwater's 1964 campaign, which Mr. Kennedy said "featured strong opposition to civil rights." For the 20 years before Judge Alito wrote that memorandum, the senator said, "he had been a dedicated right-wing advocate."

Steve Schmidt, a spokesman for the White House, dismissed the accusations as predictable, and said that they "distorted Judge Alito's written opinions to such a degree that they are no longer recognizable."

Judge Alito, meanwhile, continued to face questions about his 1985 memorandum in his meetings with senators, and on Wednesday he met some skepticism.

"He said he was 35 when he wrote that," said Senator Joseph R. Biden Jr., Democrat of Delaware, after meeting with the judge. "I pointed out I had been a senator for five years when I was 35. No one says to me, 'Well, what you said in 1974 as a senator we can just forget.' "

Senator Olympia J. Snowe of Maine, one of the handful of Republicans who support abortion rights, said Judge Alito "did not repudiate" the memorandum. She said he had sought to reassure her by acknowledging that the court had affirmed the essential holding of the landmark abortion rights case Roe v. Wade many times since then.

How much he would respect those precedents "is the major question," Ms. Snowe said, adding that she would vote against him if she thought he would overturn the Roe decision.

Let's see. We're not supposed to worry about his stand on abortion because, "... it was just a job application..." We're not supposed to worry about his views on affirmative action because, "... it was just a job application..." and now we're not supposed to worry about his views on apportionment because, "... it was just a job application..." At what point in this vetting process are we supposed to worry? Am I a little too moonbatty, or do I see an agenda pattern here?

Isn't lying on your job application enough to get a person fired in most places? And isn't he currently applying for another job? If we couldn't trust what he said to get hired 20 years ago, why should we trust it now? Especially when his hoped-for job will effect all of us for decades to come.

As far as I'm concerned he is a Corporatist. Thinks women need a note from hubby. Doesn't believe in Civil Rights, and is a liar!

Perfect Candidate for the Supreme Court of the Land!

Yeah, I'd rather he be the head of FEMA...

http://www.boston.com/news/nation/washingt...e_brief?mode=PF

It's not only Roe v Wade that America should be worried about when Alito ever gets to the Supreme Court. It's arguable as to whether he is able to judge, with fair conscience and for the good of America, and not for his self interest and his preferred groups' interest.

Don't forget that Judge Samuel A. Alito Jr. ruled in a 2002 case in favor of the Vanguard mutual fund company. At that time he actually owned more than $390,000 in Vanguard funds. He even dared complained later about an effort to remove him from the case - revealed in court records, despite an earlier promise to recuse himself from cases involving the company.

Questions Arise on Potential Alito Financial Conflicts
Totenberg reports on Supreme Court nominee Samuel Alito's failure to disqualify himself from a mutual fund case in which he had a possible conflict of interest.

http://www.npr.org/templates/story/story.php?storyId=4990865

Plaintiff alleges Alito conflict
Says judge should have recused self
By Sarah Schweitzer and Michael Kranish, Globe Staff | November 3, 2005

http://www.boston.com/news/nation/washingt...alito_conflict/

Note: As to the ad hitting CNN lately - with a whole lot of diverse 'judicial' faces in praise of Alito - won't work when those faces only belong to Fundamentalist Christian Right members who don't care about doing what's right for all Americans except for their rights at misinterpreting the Bible.

From Dkos. But I have also included the entire Daily Princetonian article he quotes.

http://www.dailykos.com/storyonly/2005/11/23/112524/20



And here is the entire article from the Daily Princetonian:

http://www.dailyprincetonian.com/archives/...ion/13901.shtml

More Alito and his participation in CAP, from The Nation:

http://www.thenation.com/doc/20051212/press

The NY Times has caught on to this story.

http://www.nytimes.com/2005/11/27/politics...l1/27alito.html

'86 Alito Memo Argues Against Foreigners' Rights
Work for Justice Dept. Points to Views That May Affect Anti-Terrorism Rulings on High Court

By Jo Becker and Amy Goldstein
Washington Post Staff Writers
Tuesday, November 29, 2005; A04



As a senior lawyer in the Reagan Justice Department, Samuel A. Alito Jr. argued that immigrants who enter the United States illegally and foreigners living outside their countries are not entitled to the constitutional rights afforded to Americans.

In an opinion that offers insight into the Supreme Court nominee's view of an area of law that has gained new significance with the Bush administration's policies to combat terrorism, Alito gave his approval to an FBI effort in the 1980s to collect from Canadian authorities fingerprint cards of Iranian and Afghan refugees living in that country.

The program to collect background information was constitutional, Alito wrote in a January 1986 memo to the FBI director. And because the refugees were nonresident immigrants of a third country, he reasoned, the FBI could disregard court decisions that prohibited it from spreading "stigmatizing" information about citizens.

With the Supreme Court scheduled to hear a major case this term involving the Bush administration's policy of trying "enemy combatants" in military tribunals, Alito's views of the FBI's old anti-terrorism fingerprint program have resonance today, reflecting what legal experts said is a broad and aggressive view of the law.

The memo on the rights of immigrants was among 120 documents from Alito's 16-month tenure as a deputy assistant attorney general in the Office of Legal Counsel that the Justice Department released yesterday in response to a Freedom of Information Act request by The Washington Post and other news organizations. The agency withheld 70 other documents, asserting that they were exempt from disclosure on grounds of privacy, attorney-client privilege or rules relating to classified information. Names and other details were blacked-out on some documents that were released.

Still, the memos, letters and other papers, most of them written by Alito himself, provide the most vivid picture available to date of the future nominee's role and views from December 1985 to March 1987, when he worked on legal matters as a high-ranking political appointee during President Ronald Reagan's second term. He would go on to become U.S. attorney for New Jersey and, later, an appeals court judge.

His writings show Alito in sync with the philosophy of the Republican administration of which he was a part, staking out strong stances on aggressive law enforcement and on states' rights. The views he expresses also could be construed as paralleling those of the Bush administration as it has pursued its campaign against terrorists, legal experts said.

The current administration has contended, for instance, that al Qaeda and Taliban detainees held at the U.S. naval base in Guantanamo Bay, Cuba, had no right to have their case heard by a U.S. judge. That is in part because, like the Afghan and Iranian refugees in Canada about whom Alito wrote, the recent detainees were not on U.S. soil. That view was rejected last year by a divided Supreme Court.

In his 1986 memo, Alito cites a 1950 Supreme Court case to support the contention that nonresident immigrants of other countries have "no due process rights" under the Constitution and a 1970 case that he said suggests illegal immigrants in the United States have limited constitutional rights.

Martin Redish, a constitutional law professor at Northwestern University Law School, said that view could also be used to justify a current administration policy under which the CIA is interrogating suspected terrorists in a covert prison system in Eastern Europe and elsewhere.

Conservative constitutional analyst Bruce Fein, who served in the Reagan administration with Alito, said that by the time Alito wrote the memo the Supreme Court had ruled that school-age illegal immigrants had a right to a public education.

"He seems to be saying that there is no constitutional constraints placed on U.S. officials in their treatment of nonresident aliens or illegal aliens. Could you shoot them? Could you torture them?" Fein asked. "It's a very aggressive reading of cases that addressed much narrower issues."

On other law enforcement issues, Alito also took a pro-government approach. In a January 1986 memo, Alito expressed several concerns about ethics guidelines for prosecutors that had been proposed by the D.C. Bar Association, saying they would impose "unworkable burdens" on lawyers responsible for bringing criminals to justice.

In another memo a few months later, Alito cited a loophole he said would allow IRS attorneys investigating taxpayers to get around an American Bar Association rule that prohibited lawyers from secretly recording conversations.

In late 1986, Alito also suggested that he favored allowing law enforcement agencies to use "message-switching" technology banned by Congress, in which they intercepted computer messages, stored them and relayed them to the unsuspecting intended recipient. He said that it was unconstitutional to allow legislative committees to approve of this technique but went on to say: "We would be happy to assist you in drafting proposed legislation that would authorize message switching."

Alito displayed his concern for states' rights in a memo the following year to John R. Bolton, at the time an assistant attorney general and now U.S. ambassador to the United Nations. In the 1987 memo, Alito cautioned about aspects of an agreement on universal children's rights that the State Department was negotiating with the U.N. Commission on Human Rights.

Alito said that provisions in the U.N. document "will undertake to provide broad protections for children," such as free care of disabled children and free primary education, that are not guaranteed by the federal government. "Unless the federal government actually intends to undertake these responsibilities on a national level (and we would vigorously oppose such an undertaking on federalism grounds) we believe that the Department of State should make clear in negotiations that it is unlikely" the United States would agree to such terms and "their fulfillment will be at the discretion of the states." And he said the U.N. document would conflict with laws in some states by forbidding death sentences for criminals younger than 18 -- a practice recently outlawed by the Supreme Court.

At other points, the writings show Alito protecting the political interests of the Reagan White House. In a March 1987 memo, he disagreed with an earlier opinion from the Office of Legal Counsel, which had concluded that it was improper for people who did work at the White House without a government salary to be paid by national political organizations. Because many White House workers already have an "acknowledged and accepted partisan political bent," he wrote, "it strikes us as counterintuitive to suggest that an objectionable conflict of interest" would arise if they were paid by a political group.

http://www.washingtonpost.com/wp-dyn/conte...2801849_pf.html

Boy, even Bruce Fein calls Alito's reading "aggressive". And I thought he was being chariitable when he said that.

Posted on Tue, Dec. 06, 2005

Administration objects to story describing Alito as conservative

By Ron Hutcheson

Knight Ridder Newspapers



WASHINGTON - The Bush administration is mounting an aggressive effort to counter a Knight Ridder story that described Supreme Court nominee Samuel Alito as a committed judicial conservative.


The administration's response - delivered separately Tuesday by the White House and the Justice Department - reflects its determination to defend Alito and its sensitivity to the "conservative" label for him.


The attack came after Senate Democrats circulated Knight Ridder's assessment of Alito's judicial record for possible use against him at his confirmation hearings next month.


The 2,500-word Knight Ridder analysis, based on 311 opinions by Alito during his service on the 3rd Circuit Court of Appeals, concluded that he "has worked quietly but resolutely" to advance his conservative philosophy on a host of legal issues.


"Although Alito's opinions are rarely written with obvious ideology, he's seldom sided with a criminal defendant, a foreign national facing deportation, an employee alleging discrimination or consumers suing big business," reporters Stephen Henderson and Howard Mintz wrote.


The reporters also concluded that Alito "rarely supports individual rights," shows "a strong deference to police authority" and is extremely skeptical about claims of racial discrimination. Henderson covers the Supreme Court for Knight Ridder. Mintz, a reporter for the San Jose Mercury News, a Knight Ridder paper, worked on the Alito project during a stint in Washington.


Administration officials said the story unfairly cast the Supreme Court nominee as a conservative ideologue.


"His 15-year record on the 3rd Circuit shows him to be a mainstream, fair, thorough judge," Assistant Attorney General Rachel Brand said in a C-SPAN interview devoted to her critique of the Knight Ridder analysis.


Brand, whose duties include shepherding judicial nominations through the Senate, rejected the conservative label for Alito.


"The term conservative means different things to different people. A judge is supposed to apply the law, not make it," she said.


John Nowacki, senior counsel in the Justice Department's Office of Public Affairs, also objected to the Knight Ridder analysis. In an e-mail to Henderson, Nowacki criticized attempts to discern a judicial philosophy by looking for trends in a judge's record.


"This outcome-based analysis is inapplicable and unfair to judges ... A judge's work cannot be divorced from the facts of particular cases," Nowacki wrote.


The White House offered an opinion article defending Alito against the Knight Ridder analysis by lawyer Jeffrey Wasserstein, a Democrat who says he supported John Kerry in the last presidential election. Wasserstein, a former Alito clerk, said he was unaware of Alito's political leanings when he worked for the judge in 1997-98.


"It was my experience that Judge Alito was (and is) capable of setting aside any personal biases he may have when he judges," Wasserstein wrote.


But some of Alito's allies say he should embrace the conservative label because it fits.


"The Department of Justice statement is fatuous. If you can't tell by looking at his opinions what kind of philosophy he would carry to the Supreme Court, how would you know to nominate him?" said Bruce Fein, a conservative legal scholar and an Alito supporter. "A judge has a personal view of what the Constitution means."






Separately, Sen. John Cornyn, R-Texas, challenged the Knight Ridder analysis in a letter to The Philadelphia Inquirer, a Knight Ridder paper that printed the article. Cornyn, a member of the Senate Judiciary Committee, complained that the article misrepresented Alito's record in siding with employment-discrimination plaintiffs in only four of 18 cases.


Cornyn said a 2003 study showed that overall, federal appellate judges side with plaintiffs in such cases only 13 percent of the time, so Alito's four in 18 record, or 22 percent, shows him "actually more favorable to such plaintiffs than his fellow jurists."




The response to the Knight Ridder analysis was the latest in a series of administration efforts to counter any suggestion that Alito would be a conservative activist on the Supreme Court.


Administration officials scrambled last week to counter speculation that Alito would seek to ban abortions after the release of a 1985 memo he wrote in which he outlined a long-term strategy to overturn Roe v. Wade, the 1973 ruling that made abortions legal nationwide.


At the suggestion of White House officials, Alito met with Sen. Arlen Specter, R-Pa., the chairman of the Senate Judiciary Committee, to explain that the 1985 memo should not be taken to mean that he would vote to overturn Roe v. Wade as a member of the Supreme Court.


The White House and other Alito allies also downplayed the significance of a letter that Alito wrote later in 1985 expressing the opinion that "the Constitution does not protect the right to an abortion." At the time, Alito was seeking a promotion in the anti-abortion Reagan administration.

http://www.realcities.com/mld/krwashington/13343347.htm

http://www.bonnercountydailybee.com/articl...s/d8em2csg0.txt

WASHINGTON - Supreme Court nominee Samuel Alito defended the right of government officials to order domestic wiretaps when he worked for the Reagan Justice Department, documents released Friday show.

He advocated a step by step approach to strengthening the hand of officials in a 1984 memo to the solicitor general. The strategy is similar to the one that Alito espoused for rolling back abortion rights at the margins.

The release of the memo by the National Archives comes when President Bush is under fire for secretly ordering domestic spying of suspected terrorists without a warrant. Senate Judiciary Committee Chairman Arlen Specter, R-Pa., has promised to question Alito about the administration's program.

The memo dealt with whether government officials should have blanket protection from lawsuits when authorizing wiretaps. "I do not question that the attorney general should have this immunity," Alito wrote. "But for tactical reasons, I would not raise the issue here."

Despite Alito's warning that the government would lose, the Reagan administration took the fight to the Supreme Court in the case of whether Nixon's attorney general, John Mitchell, could be sued for authorizing a warrantless domestic wiretap to gather information about a suspected terrorist plot. The FBI had received information about a conspiracy to destroy utility tunnels in Washington and kidnap Henry Kissinger, then national security adviser.

That case ultimately led to a 1985 ruling by the Supreme Court that the attorney general and other high level executive officials could be sued for violating people's rights, in the name of national security, with such actions as domestic wiretaps.

"The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity," the court found.

However, the court said Mitchell was protected from suit, because when he authorized the wiretap he did not realize his actions violated the Fourth Amendment.

ah this guy,
he isn't very smart now is he?

Alito or "Scalito" is just like" Mr Bubbles"
The Constitution is "Just A G%$ Damn Piece of Paper to be read as they see it.
Or just something to wipe their Butts on

--------------------------------------------------------------------------------

December 23, 2005
Alito Defended Wiretap Protections in Memo
By THE ASSOCIATED PRESS
Filed at 4:58 p.m. ET

WASHINGTON (AP) -- Supreme Court nominee Samuel Alito defended the right of government officials to order domestic wiretaps for national security when he worked at the Reagan Justice Department, an echo of President Bush's rationale for spying on U.S. residents in the war on terror.

Then an assistant to the solicitor general, Alito wrote a 1984 memo that provided insights on his views of government powers and legal recourse -- seen now through the prism of Bush's actions -- as well as clues to the judge's understanding of how the Supreme Court operates.

The National Archives released the memo and scores of other documents related to Alito on Friday; the Associated Press had requested the material under the Freedom of Information Act. The memo comes as Bush is under fire for secretly ordering domestic spying of suspected terrorists without a warrant.

Senate Judiciary Committee Chairman Arlen Specter, R-Pa., said Monday he would ask Alito about the president's authority at confirmation hearings beginning Jan. 9. The memo's release Friday prompted committee Democrats to signal that they will press the conservative jurist about executive powers.

The memo dealt with whether government officials should have blanket protection from lawsuits when authorizing wiretaps. ''I do not question that the attorney general should have this immunity,'' Alito wrote. ''But for tactical reasons, I would not raise the issue here.''

Despite Alito's warning that the government would lose, the Reagan administration took the fight to the Supreme Court in the case of whether Nixon's attorney general, John Mitchell, could be sued for authorizing a warrantless domestic wiretap to gather information about a suspected terrorist plot.

The FBI had received information about a conspiracy to destroy utility tunnels in Washington and to kidnap Henry Kissinger, then national security adviser, to protest the Vietnam War.

In its court brief, the government argued for absolute immunity for the attorney general on matters of national security.

''The attorney general's vital responsibilities in connection with intelligence gathering and prevention in the field of national security are at least deserving of absolute immunity as routine prosecutorial actions taken either by the attorney general or by subordinate officials.

''When the attorney general is called upon to take action to protect the security of the nation, he should think only of the national good and not about his pocketbook,'' the brief said.

Signing the document was Rex E. Lee, then the solicitor general, officials from the Justice Department and Alito.

Alito's analysis about the court and the need for an incremental legal strategy proved prescient. The case ultimately led to a 1985 ruling by the Supreme Court that the attorney general and other high level executive officials could be sued for violating people's rights, in the name of national security, with such actions as domestic wiretaps.

''The danger that high federal officials will disregard constitutional rights in their zeal to protect the national security is sufficiently real to counsel against affording such officials an absolute immunity,'' the court held.

However, the court said Mitchell was protected from suit, because when he authorized the wiretap he did not realize his actions violated the Fourth Amendment.

The decision was consistent with the Supreme Court's unanimous ruling in 1972 that it was unconstitutional for the government to conduct wiretaps without court approval despite the Nixon administration's argument that domestic anti-war groups and other radicals were a threat to national security.

Alito had advised his bosses to appeal the case on narrow procedural grounds but not seek blanket immunity.

''There are also strong reasons to believe that our chances of success will be greater in future cases,'' he wrote. He noted that then-Justice William H. Rehnquist would be a key vote and would recuse himself from the Nixon-era case.

The documents were among 45 released by the National Archives as the holiday weekend approached. A total of 744 pages were made public.

The White House and Sen. John Cornyn, R-Texas, a member of the Judiciary Committee, dismissed any link between the 1984 memo to Bush's authorization of electronic surveillance without a warrant to thwart terrorism.

''Any connection between Judge Alito's 1984 memorandum and the current discussion of terrorist surveillance by the NSA is a real stretch,'' Cornyn said in a statement.

But Democrats seized on the memo and vowed to press Alito on the matter at his confirmation hearings.

''At a time when the nation is faced with revelations that the administration has been wiretapping American citizens, we find that we have a nominee who believes that officials who order warrantless wiretaps of Americans should be immune from legal accountability,'' said Sen. Edward Kennedy, D-Mass.

Bush picked Alito to take the Supreme Court seat held by Associate Justice Sandra Day O'Connor, who is retiring.

Among the documents released Friday was a June 1985 memo in which Alito said abortion rights should be overturned but recommended a roadmap of dismantling them piece by piece instead of a ''frontal assault on Roe v. Wade.''

The June abortion memo contained the same Alito statements as one dated May 30, 1985, which the National Archives released in November -- but with a forward note from Reagan administration Solicitor General Charles Fried acknowledging the volatility of the issue and saying it had to be kept quiet.

''I need hardly say how sensitive this material is, and ask that it have no wider circulation,'' Fried wrote.

Alito, a federal appellate court judge, has been seeking to assure senators that he would put his private views aside when it came time to rule on abortion as a justice. O'Connor has been a supporter of the landmark 1973 Roe v. Wade ruling affirming a woman's constitutional right to an abortion.

------

On the Net:

Alito documents: http://www.archives.gov

Supreme Court: http://www.supremecourtus.gov



Copyright 2005 The Associated Press Home Privacy Policy Search Corrections XML Help Contact Us Work for Us Site Map Back to Top

"The memo dealt with whether government officials should have blanket protection from lawsuits when authorizing wiretaps. "I do not question that the attorney general should have this immunity," Alito wrote. "But for tactical reasons, I would not raise the issue here."

Despite Alito's warning that the government would lose, the Reagan administration took the fight to the Supreme Court".............


Seems to me his job was not to "question...the attorney general"...
and that his advice was solid: "I would not raise the issue here."

As a law enforcement officer I've learned to not indict
a defense attorney working for his clients. In this case the
role is reversed and it's a solicitor general working for Reagan.

Actually his advice was pretty unbiased while working for Reagan.
And by saying "I do not question that the attorney general should
have this immunity" he acknowledges the question.

When we look at practicing the art of war we must be realistic...
as a Southerner I understand having to make a stand on principal,
but I also understand reviewing reality:

ROBERT KRICK

Historian and author of ten books about the war.

The South lost because it had inferior resources in every aspect of military personnel and equipment. That's an old-fashioned answer. Lots of people will be scornful of it. But a ratio of twenty-one million to seven million in population comes out the same any way you look at it.

IMHO Alito is just not radical enough to make a "last stand" on.
He will be confirmed and neo-cons will use the objections to him
as an excuse to call the opposition "the radical left wing".

I believe a wiser investment in action is to drive toward investigating
the illegal wire tapping by Bush - thus driving the Supreme Court
further to the center because of the abuses of the Right Wing.

--------------------------------------------------------------------------------

December 24, 2005
Editorial
Alito's Zeal for Presidential Power
With the Bush administration claiming sweeping and often legally baseless authority to detain and spy on people, judges play a crucial role in underscoring the limits of presidential power. When the Senate begins hearings next month on Judge Samuel Alito, President Bush's Supreme Court nominee, it should explore whether he understands where the Constitution sets those limits. New documents released yesterday provide more evidence that Judge Alito has a skewed view of the allocation of power among the three branches - skewed in favor of presidential power.

One troubling memo concerns domestic wiretaps - a timely topic. In the memo, which he wrote as a lawyer in the Reagan Justice Department, Judge Alito argued that the attorney general should be immune from lawsuits when he illegally wiretaps Americans. Judge Alito argued for taking a step-by-step approach to establishing this principle, much as he argued for an incremental approach to reversing Roe v. Wade in another memo.

The Supreme Court flatly rejected Judge Alito's view of the law. In a 1985 ruling, the court rightly concluded that if the attorney general had the sort of immunity Judge Alito favored, it would be an invitation to deny people their constitutional rights.

In a second memo released yesterday, Judge Alito made another bald proposal for grabbing power for the president. He said that when the president signed bills into law, he should make a "signing statement" about what the law means. By doing so, Judge Alito hoped the president could shift courts' focus away from "legislative intent" - a well-established part of interpreting the meaning of a statute - toward what he called "the President's intent."

In the memo, Judge Alito noted that one problem was the effect these signing statements would have on Congressional relations. They would "not be warmly welcomed by Congress," he predicted, because of the "novelty of the procedure" and "the potential increase of presidential power."

These memos are part of a broader pattern of elevating the presidency above the other branches of government. In his judicial opinions, Judge Alito has shown a lack of respect for Congressional power - notably when he voted to strike down Congress's ban on machine guns as exceeding its constitutional authority. He has taken a cramped view of the Fourth Amendment and other constitutional provisions that limit executive power.

The Supreme Court and the lower federal courts have had to repeatedly pull the Bush administration back when it exceeded its constitutional powers. They have made clear that Americans cannot be held indefinitely without trial just because they are labeled "enemy combatants." They have vindicated the right of Guantánamo Bay detainees to challenge their confinement. And they will no doubt have to correct the Bush administration's latest assertions of power to spy domestically. The Senate should determine that Judge Alito is on the side of the Constitution in these battles, not on the side of the presidency - which the latest documents strongly question - before voting to confirm him.



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Alito advocated reversing Roe v. Wade aborition decision , memo shows
By DONNA CASSATA Associated Press Writer

(AP) - WASHINGTON-Supreme Court nominee Samuel Alito wrote in a June 1985 memo that the landmark Roe v. Wade ruling legalizing abortion should be overturned, a finding certain to enliven January's confirmation hearings.

In a recommendation to the U.S. government's top lawyer on filing a friend-of-court brief, Alito said that the government "should make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether, and if so to what extent, that decision should be overruled."



The June 3, 1985 document was one of 45 released by the National Archives on Friday. A total of 744 pages was made public.

Abortion has become a wedge issue in connection with Alito's confirmation to take the Supreme Court seat held by Justice Sandra Day O'Connor, who is retiring. She is often the swing vote on contentious social issues that reach the highest U.S. court.

The federal appellate court judge has been seeking to assure senators that he would put his private views aside when it came time to rule on the issue as a justice. O'Connor has been a supporter of the landmark 1973 Roe v. Wade ruling affirming a woman's U.S. constitutional right to an abortion.

The documents released Friday are the latest involving Alito and abortion.

In paperwork released earlier from Alito's time in the Justice Department's solicitor general's office, he recommended a legal strategy of dismantling abortion rights piece by piece. And as part of an application for a job as deputy assistant attorney general, Alito said the Constitution does not guarantee abortion rights.

The latest memo is certain to stir controversy as the Senate prepares for confirmation hearings for Alito, slated to begin Jan. 9.

Charles Fried, a Reagan administration solicitor-general, two decades ago noted the implications of the memo in his introduction, "I need hardly say how sensitive this material is, and ask that it have no wider circulation."

In the memo, Alito focused on a woman making an informed choice and states rights.

"While abortion involves essentially the same medical choice as other surgery, it involves in addition a moral choice, because the woman contemplating a first trimester abortion is given absolute and unreviewable authority over the future of the fetus," Alito wrote. "Should not then the woman be given relevant and objective information bearing on this choice? Roe took from the state lawmakers the authority to make this choice and gave it to the pregnant woman. Does it not follow that the woman contemplating abortion have at her disposal at least some of the same sort of information that we would want lawmakers to consider?"

Consistent with his previous writings, Alito said these arguments would be preferable to a "frontal assault on Roe v. Wade."

"It has most of the advantage of a brief devoted to the overruling of Roe v. Wade; it makes our position clear, does not even tacitly concede Roe's legitimacy, and signals that we regard the question as live and open," Alito wrote.

2005-12-23T15:07:12Z

Alito, In and Out of the Mainstream
In Analysis, Nominee Defies Portrayals by Left and Right

By Amy Goldstein and Sarah Cohen
Washington Post Staff Writers
Sunday, January 1, 2006; A01



During 15 years as an appeals court judge, Supreme Court nominee Samuel A. Alito Jr. has been highly sympathetic to prosecutors, skeptical of immigrants trying to avoid deportation, and supportive of a lower wall between church and state, according to an analysis of his record by The Washington Post.

Alito has taken a harder line on criminal and immigration cases than most federal appellate judges nationwide, including those who, like him, were selected by Republican presidents, the analysis found.

In civil rights cases, Alito has sided against three of every four people who claimed to have been victims of discrimination, based on the lawsuits in the analysis. Such a record is typical of Republican appointees on federal appeals courts in discrimination cases, the area of the law in which national studies show GOP-appointed judges differ most from their Democratic-appointed counterparts.

Still, in a few areas of the law, Alito's record resembles that of the average U.S. appellate judge. His decisions on First Amendment cases have been mixed. And when workers have sued for pay or benefits, he has agreed with them about half the time.

The analysis, based on a database developed through a review of more than 200 cases Alito helped to decide on the U.S. Court of Appeals for the 3rd Circuit, provides a more nuanced glimpse of his ideology than the portrayal by his supporters and critics. Bush administration officials and conservative allies working to win Alito's confirmation say he fits within the judicial mainstream; some Democrats and liberal advocacy groups trying to defeat his nomination say he is an ideologue.

Neither characterization is completely accurate.

Instead, the analysis, along with interviews of scholars who study the courts, shows that Alito takes consistently restrictive stances on some social issues and criminals' rights but does not differ substantially from the typical judge in other areas.

Overall, the analysis shows, Alito does not disagree with majority opinions more frequently than most federal appeals judges do in similar cases. Yet a closer look finds that he dissents most often in areas where his views are least typical of the average judge: cases in which he has favored religion and largely sided against immigrants and one group of convicted criminals: prisoners facing the death penalty.

"Here is where Alito really takes his stand," said Kenneth L. Manning, a political scientist at the University of Massachusetts at Dartmouth who has studied the voting behavior of other appellate judges.

Because Supreme Court justices are free to disregard precedent, Alito's decisions are an imperfect barometer of how he might rule if he succeeds Sandra Day O'Connor, a pivotal member of the high court. Still, scholars said that his opinions since joining the 3rd Circuit in 1990 yield important clues, such as which areas of law he is passionate about, whether he strives for consensus and how his views align with Supreme Court decisions.

To examine his record, The Post looked at how Alito voted on all 221 cases he has helped to decide in which the 3rd Circuit -- which handles appeals from Pennsylvania, New Jersey, Delaware and the Virgin Islands -- issued a divided ruling. Those cases provide a revealing window to a judge's ideology, judicial scholars say, because they involve legal issues that are unclear. In that way, they also are most like the cases the Supreme Court hears, said Donald R. Songer, a political scientist at the University of South Carolina who studies appellate courts.

The idea of trying to gauge a judge's ideology from his voting patterns on different types of cases is unpopular among law professors who prefer to study legal reasoning case by case. But the method used by The Post is well accepted among political scientists -- many of whom clump together votes on types of cases to determine whether a judge is liberal or conservative, a step The Post did not take.

The analysis included 34 majority opinions and 55 dissenting ones that Alito wrote, plus 132 in which he voted but did not put his views in writing.

Overall, the opinions Alito wrote are largely devoid of impassioned rhetoric or broad philosophical assertions. He grounds his views in close readings of legal precedents, statutes and government regulations. Of the cases The Post examined, Alito upheld the rulings of a lower court about half the time, which is typical of appeals judges nationally.

Routinely, he defers to government officials and others in positions of authority. He sometimes chastises his fellow judges for what he regards as overstepping their authority by imposing their own judgments, rather than merely assessing the legality of actions by prison guards, defense lawyers and immigration officials being challenged -- actions he often upholds.

His written opinions often are "very thoughtful, well constructed and well argued," said Martin H. Redish, a constitutional scholar at Northwestern University School of Law in Chicago who reviewed several cases in the Post analysis. At the same time, he said, Alito is "clearly tough-minded . . . having very little sympathy for those asserting rights against the government."

With Alito's Senate confirmation hearings scheduled to start Jan. 9, the debate over his nomination has escalated to a political brawl. At the core of the partisan fight is a pair of memos he wrote two decades ago, when he was a Justice Department lawyer in the Reagan administration. In them he made clear that he opposed Roe v. Wade , the 1973 Supreme Court ruling that legalized abortion nationwide.

There were two abortion cases in the analysis. Alito voted to restrict abortion rights in one -- the well-known Planned Parenthood of Southeastern Pennsylvania v. Casey , in which the Supreme Court later disagreed with him -- and voted to protect such rights in the other.

Alito's place in the nation's decades-old abortion wars, the analysis shows, is not what most defines him as a judge.

The Prosecutors' View

In the summer of 1991, Kourtney Kauffman was released against his doctors' advice after a five-day stay at a psychiatric center in Harrisburg, Pa. Two days before he was hospitalized, five guns were stolen from a nearby house. Five days after he got out, Kauffman was arrested while trying to sell four of the weapons to a firearms dealer.

On his lawyer's advice, he pleaded guilty to illegally possessing the guns and received a 15-year sentence. A few years later, Kauffman sought to have his conviction overturned, arguing that his lawyer had not discussed the possibility of an insanity defense, even though a psychiatrist who had examined him the day he was arrested concluded he was "undoubtedly psychotic at the time."

A U.S. district judge turned Kauffman down, and he appealed. The two 3rd Circuit judges with whom Alito heard the case -- like him, appointed by President George H.W. Bush -- ordered a new trial for Kauffman. Although a court must be "highly deferential" to the decisions of a lawyer representing a criminal defendant, the majority ruled, Kauffman's counsel was inadequate because he had not investigated his client's history of mental illness or considered an insanity defense.

Alito disagreed. Because the lawyer had represented Kauffman in the past, Alito wrote in his dissent, he knew his client well enough to make a "tactical decision" that a guilty plea was the best course. The court majority, he wrote, "fails to heed that important admonition" that judges should be reluctant to second-guess lawyers' conduct.

U.S. v. Kauffman is typical of Alito's perspective on criminal cases. Of 33 such cases in the analysis, he sided with criminal defendants only three times, aligning with prosecutors more often than the average GOP-appointed judge in divided cases. His high rate of favoring the prosecution is nearly identical to that of the Supreme Court's new chief justice, John G. Roberts Jr., according to the University of Massachusetts's Manning, who performed a similar analysis of Roberts's record from his two years on a different federal appeals court.

As in the Kauffman case, Alito voted in two-thirds of the criminal cases to uphold the rulings of a lower-court judge. His votes in one small group of those criminal cases -- four appeals from inmates facing death sentences -- were even more consistent. Every time, he voted against sparing the prisoner from execution. Nationally, federal appeals judges in disputed cases vote to give relief to prisoners sentenced to death about a third of the time.

Such a record, the University of South Carolina's Songer said, implies that Alito would behave differently from Justice O'Connor, who has been willing in recent years to restrict the use of the death penalty.

Cool on Immigrants

If Alito's treatment of criminal cases is unusual, his record is more ordinary in a few other areas. This is particularly true in lawsuits by employees who claim to have been denied wages, benefits or union rights. Of 19 such cases in the analysis, Alito voted in favor of workers nearly half the time -- about the same as judges nationwide and more often than the average Republican-appointed judge.

In 1991, his was the sole vote siding with 228 Philippine seamen working on Kuwaiti oil tankers in the Persian Gulf who alleged that they deserved to be paid minimum wage under the Fair Labor Standards Act. It was around the time of the Persian Gulf War, and their ships had temporarily been reflagged under the U.S. flag because it was dangerous in that region for vessels from neutral countries.

The court majority ruled the sailors did not deserve the pay because they were outside U.S. waters and their ships were only temporarily reflagged. Alito countered that the legislative history of the labor law "makes clear that Congress intended for the minimum wage requirement to apply to all seamen on all American vessels."

Alito has been less sympathetic to employees who claim to have been discriminated against on the basis of race, sex, age or disability, siding squarely with them in just three of 15 such cases in the analysis. In those and other discrimination cases, his voting pattern is comparable to the typical Republican-appointed judge.

He also is similar to other Republican appointees in overall deference to the government. For example, he agreed with the government position in all but one of seven cases in which prisoners alleged violations of their rights.

The only kind of case involving the government in which Alito ruled against its interest most of the time was when companies challenged federal regulations.

His treatment of immigration issues -- siding one time in eight squarely with immigrants who were trying to win asylum or block their deportation -- makes Alito less sympathetic to immigrants than most Republican appointees. At a time when other circuit judges nationwide have criticized as too harsh the reasoning and conduct of the Board of Immigration Appeals, Alito has displayed "almost total deference" to the board, said Owen M. Fiss, a Yale Law School professor who, with 21 Yale faculty and students, has analyzed the more than 400 published opinions Alito has written.

In the 1994 Tipu v. Immigration and Naturalization Service , two judges with whom he heard the case -- both GOP appointees -- threw out a deportation order against a Pakistani immigrant convicted on a drug conspiracy charge. The top administrative board that considers immigrants' appeals, they reasoned, had made mistakes, ignoring that Mohammed Zafar Tipu had played a minor role in the conspiracy, received a high school degree while serving a light prison sentence and cared for an ailing brother.

Alito wanted to uphold the deportation. "The majority has wandered well beyond the limited scope of appellate review that we are permitted," he wrote in his dissent. "Whatever else one may think about [the immigration board's] decision, it was not arbitrary, irrational or contrary to law."

Last year, the 3rd Circuit blocked the deportation of a Korean couple, longtime residents of the United States who were convicted of a tax violation, concluding that the crime was not an "aggravated felony" that required them to be removed. Alito, in a dissent, gave a lengthy interpretation of what he believed Congress had in mind when it wrote a section of federal immigration law -- and the majority chided him, writing that a judge should reach decisions "unaided by speculation."

Larger Role for Religion

Alito has agreed consistently with people who are trying to expand the role of religion in public life, the analysis shows.

Three cases in the analysis deal with the boundaries between church and state, and Alito's decisions parallel about a dozen other -- unanimous -- cases he has heard that were not examined by The Post, said Ira C. Lupu, a constitutional scholar at George Washington University Law School.

Alito's views differ from those of most appellate judges and all the current members of the Supreme Court, Lupu said, because "he is on the side of whoever is trying to include or advance a religious message." Alito has taken a narrow view of the First Amendment's establishment clause, which forbids the government to sponsor any religion, and an expansive view of its free-exercise clause, which protects people's rights to worship as they want.

In an establishment-clause case in the analysis, American Civil Liberties Union of New Jersey ex rel. Lander v. Schundler , Alito wrote a 1999 majority opinion upholding the constitutionality of a holiday display in front of City Hall in Jersey City. A lower court had banned the display a few years earlier, when it featured a Hanukkah menorah and a Christmas tree. Two weeks later, the city put it back up with changes, adding a large plastic Santa Claus, Frosty the Snowman, a red sled and Kwanzaa symbols.

Alito said the secular additions "demystified" the religious symbols and made the display legal. In a dissent, Judge Richard Lowell Nygaard, a Reagan appointee, wrote that the "addition of a few small token secular objects is not enough to constitutionally legitimate the modified display."

In a free-exercise case, Alito sided with a boy named Zachary Hood in Medford, N.J., who, as a kindergartner, made a poster on which he had drawn a picture of Jesus as an example of something he was thankful for. In first grade, when allowed to bring a book to read to class, he brought "The Beginner's Bible: Timeless Children's Stories."

The court's majority ruled in favor of the school system and teachers, who removed the boy's poster from a wall and forbade him to read the Bible stories to his class. Alito dissented, writing that "discriminatory treatment of the poster because of its 'religious theme' would violate the First Amendment." He reasoned that "public school students have the right to express religious views in class discussion or in assigned work, provided that their expression falls within the scope of the discussion or the assignment."

Alito has greater sympathy for First Amendment rights when it comes to religion than other free-speech issues. Of six First Amendment cases in the analysis that did not involve religion, he voted to uphold such rights once.

Last February, for instance, he helped to decide a class-action lawsuit by inmates in a unit of a Pittsburgh prison set aside for especially violent prisoners. Inmates in the unit were not allowed to have newspapers, magazines or photographs -- and they sued, alleging the rule violated their free-speech rights.

The court's majority found the ban unconstitutional. Alito disagreed. Citing a precedent that "instructs courts to extend considerable deference to judgments of correctional officials," he wrote that the prison officials were reasonable in believing the restrictions might deter other inmates from misbehaving -- and that the segregated prisoners did not face absolute restrictions, because they could get around the ban by improving their behavior enough to get out of the unit. In November, the Supreme Court decided that it will hear the case.

Staff writers Jeffrey H. Birnbaum, Charles Lane and Christopher Lee; research editor Lucy Shackelford; researcher Madonna Lebling; and research database editor Derek Willis contributed to this report.

http://www.washingtonpost.com/wp-dyn/conte...3100328_pf.html

Alito Once Made Case For Presidential Power

By Christopher Lee
Washington Post Staff Writer
Monday, January 2, 2006; A11



As a young Justice Department lawyer, Supreme Court nominee Samuel A. Alito Jr. tried to help tip the balance of power between Congress and the White House a little more in favor of the executive branch.

In the 1980s, the Reagan administration, like other White Houses before and after, chafed at the reality that Congress's reach on the meaning of laws extends beyond the words of statutes passed on Capitol Hill. Judges may turn to the trail of statements lawmakers left behind in the Congressional Record when trying to glean the intent behind a law. The White House left no comparable record.

In a Feb. 5, 1986, draft memo, Alito, then deputy assistant attorney general in the Office of Legal Counsel, outlined a strategy for changing that. It laid out a case for having the president routinely issue statements about the meaning of statutes when he signs the