A Knight Ridder analysis of 331 of Supreme Court Nominee Samuel Alito's rulings on the 3rd Circuit Court of Appeals "suggests he's likely to be more reliably conservative than Sandra Day O'Connor, the justice he would replace," based upon "his record in matters that routinely come before the Supreme Court." The article was only one bone of contention in the third day of hearings, which was marked by the tearful departure of Alito's wife while her husband was being questioned by Sen. Lindsay Graham (R-SC). Hearings are expected to conclude on Thursday.
Democratic members of the Senate Judiciary Committee were frustrated by Alito's responses to their questions about abortion. Although he described Roe vs. Wade as an "important precedent," this is a more lukewarm approach to the decision than that expressed by Chief Justice John Roberts, "who said during his confirmation hearings that he viewed Roe vs. Wade as 'settled as a precedent of the court.'"
In 1988, Alito called Judge Robert Bork -- a 1987 Supreme Court nominee whose record suggested he was an extremist -- "one of the most outstanding nominees" of the 20th century. "He is a man of unequalled intellectual ability, understanding of constitutional history, someone who had thought deeply throughout his entire life about constitutional issues and about the Supreme Court and the role that it ought to play in American society." In response, the New York Times writes in an editorial:
Judge Alito's extraordinary praise of Judge Bork is unsettling, given that Judge Bork's radical legal views included rejecting the Supreme Court's entire line of privacy cases, even its 1965 ruling striking down a state law banning sales of contraceptives.
Senators remained frustrated that Alito continues to deny any recollection of his membership with the conservative and anti-coeducation group Concerned Alumni of Princeton, despite its inclusion on his resume 13 years after he left Princeton.
Alito: "Well, Senator, I have wracked my memory about this issue, and I really have no specific recollection of that organization. ... I have tried to think of what might have caused me to sign up for membership, and if I did, it must have been around that time. And the issue that had rankled me about Princeton for some time was the issue of ROTC. I was in ROTC when I was at Princeton and the unit was expelled from the campus, and I thought that was very wrong."
Critics assert that CAP's sole purpose in its 14 year existence was to oppose affirmative action and co-education. Marsha Levy-Warren, a member of the University's first coeducational class and student government vice president, said that CAP "stated explicitly that they were not in favor of coeducation and that they weren't in favor of affirmative action. Implicitly, they were opposed to any form of diversity on campus."
Conservatives, however, believe that questions relating to CAP -- as well as Alito's about-face on his public pledge to recuse himself from cases involving Vanguard -- amount to ""Democratic 'bullying,' and said they plan to make the incident [Alito's tearful wife] a cause celebre. "
A Conservative Judge Favoring Executive Privilege
Attorney Andrew Cohen suggests Alito's testimony only reinforces the Knight Ridder analyis of his opinions:
Judge Alito has established so far during the course of his confirmation hearing only that he is precisely who he was advertised to be when first nominated last fall by President George W. Bush. From his answers, his demeanor, and even the way the Judiciary Committee reacted to him, it is obvious that the nominee is a smart, reasonable guy who views the law, and the justice system, and the art of judging, very much like the two men the president identified years ago as his models of judicial wisdom: Supreme Court Justices Antonin Scalia and Clarence Thomas. He is thus bound to shore up the Court’s most conservative wing, raising its membership from two to three on the nine-person panel.
Cohen also believes Alito's opinions as a judge and briefs as a lawyer show that he would not look askance at expansion of executive branch (presidential) power:
As a lawyer, for example, he heralded the use of presidential “signing statements” designed to offer the courts a sense of the president’s view of federal laws -- with the idea being that those courts then would have to defer to this view as they do to the "legislative history" of Congressional acts. President Bush now uses such "signing statements" even though they are a slap in the face to Congress and the courts. Then, as a judge, nominee Alito over and over again voted in favor of strong executive authority at the expense of legislative and judicial power. He made these choices long before we learned about torture or domestic surveillance without prior court approval.
The New York Times also keyed in on Alito's views on executive power:
Judge Alito has backed a controversial theory known as the "unitary executive," and argued that the attorney general should be immune from lawsuits when he installs illegal wiretaps.
Alito's record on executive power in consistent and goes back more than 20 years. For example, in the Reagan Justice Department, in 1984 he argued that "the U.S. Attorney General should have immunity from civil lawsuits and in a memo that same year, wrote, 'I do not question that the Attorney General should have this immunity, but for tactical reasons I would not raise the issue here.'" However, in 1985, the Supreme Court "concluded that if the attorney general had the sort of immunity Alito favored, it would be an invitation to deny people their constitutional rights."
Returning to the December Knight Ridder article, it says that his record shows that he is "among the 3rd Circuit's most conservative jurists when it comes to the death penalty." On privacy and police authority, Alito has supported videotapes without a warrant and the strip search of a 10 year old girl:
Alito's record also suggests that the former New Jersey U.S. attorney seldom strays far from his prosecutorial roots and remains reluctant to side with criminal defendants...
In a decision last year, he endorsed an 18-month FBI undercover probe that included audio and video monitoring of boxing promoter Robert W. Lee Sr.'s hotel suite, done without a federal judge's approval. Lee, a founder of the International Boxing Federation, was convicted of money laundering and tax evasion...
In one highly publicized case, Alito upheld a police strip search of a 10-year-old girl by arguing that a warrant that didn't mention the girl should be read "broadly." The ruling is a rare instance of a conservative jurist arguing for a departure from strict textual interpretation in favor of government intrusion
The Administration objected to the Knight Ridder story, instituting a full court press that included Senate Republican Conference rebuttal talking points. Knight Ridder, in return, defended its "fact-based" reporting, noting that "Republican National Committee circulated a blistering personal attack on [co-author Stephen] Henderson to some reporters, taking quotes out of context in an attempt to portray him as biased."
This hysteria over a carefully researched article that documents the obvious - that Samuel Alito is a judicial conservative - is the latest example of a disturbing trend of attacking the messenger instead of debating difficult issues.
Fact-based reporting is the lifeblood of a democracy. It gives people shared information on which to make political choices. But as people in new democracies risk their lives to gather such information, in this country fact-based reporting is under more relentless assault than at any time in my more than 40 years in Washington.
On the radio, on the Internet, on cable television and in print, partisans on both sides attack any news reporting that fails to advance their agendas or confirm their biases. Zealous partisans in both major parties have adopted a "with us or against us" attitude. It's not only unhealthy but also, I believe, dangerous.
Our job is to be neither with them nor against them. It's to find out the facts, as best we can, and to report them as fully, fairly and accurately as we can.