Anti-Alito Ad Uses Selective Quotes

Summary

IndependentCourt.org, a project of the Coalition for a Fair and Independent Judiciary, released an ad suggesting that Supreme Court nominee Samuel Alito would endanger privacy rights. It says “an independent analysis found that Alito often goes out of his way to narrow the scope of individual rights.” The ad fails to note that the same study also says Alito has a reputation as “a restrained judge who follows the law, not his personal beliefs,” and that he is a “near absolutist” on the rights of freedom of speech and freedom of religion.

The ad states that Alito once favored “making it easier for government officials to get away with illegal wiretapping,” and as a judge voted to uphold the strip-search of a 10-year-old girl. We furnish details of those cases.

Analysis

The liberal coalition IndependentCourt.org released a second 30-second ad on Jan. 6th as part of a six-figure media buy opposing the confirmation of Samuel Alito to the Supreme Court. We reviewed their first ad here.

This ad expresses concerns about Alito’s record on government eavesdropping and privacy of medical decisions, showing images of a telephone and a hospital bed as an announcer says, “If you don’t want more government interference, you don’t want Samuel Alito on the Supreme Court.”

Selective Quotes

The ad states that “an independent analysis found Alito often goes out of his way to narrow the scope of individual rights.” This refers to an analysis by journalists Stephen Henderson and Howard Mintz of Knight-Ridder, which appeared in several newspapers. Their study was indeed “independent” as the ad states, and the authors did in fact conclude that Alito “rarely supports individual-rights claims.” But the authors also said Alito has a reputation as a “scholarly, restrained judge who follows the law” and not personal or political beliefs in his rulings. The authors further describe Alito as a strong supporter of free speech and religious freedom. Here is more of what they said:

Henderson and Mintz: Liberal and conservative supporters alike describe the quiet, scholarly Alito as a restrained judge who follows the law, not his personal beliefs . Those who have worked closely with him, including former law clerks and fellow judges, say they can’t think of a case in which he took a partisan political stance.

. . . A review of Alito’s work on dozens of cases that raised important social issues found that he rarely supports individual-rights claims.

The primary exception has been his opinions about First Amendment protections. Alito has been a near absolutist on free speech, and he has been equally strong on protecting religious freedoms.

. . .  In other areas, Alito often goes out of his way to narrow the scope of individual rights, sometimes reaching out to undo lower-court rulings that affirmed those rights.

Getting Away with Illegal Wiretapping?

The ad also says Alito had “supported making it easier for government officials to get away with illegal wire tapping.” It is true that Alito once wrote that the US attorney general should have absolute immunity from being sued for authorizing domestic wiretapping without a warrant in national security cases. Alito did so in a memo written in 1984, while serving as an assistant to the Solicitor General in the Reagan Administration:

Alito: I do not question that the attorney general should have this immunity . . . But for tactical reasons, I would not raise the issue here . . . In my judgment, this is not the case to choose . . . The government’s interests do not demand that this issue be advanced now. There are also strong reasons to believe that our chances of success will be greater in future cases.

Despite Alito’s advice, the Reagan administration asked the Supreme Court to rule that the attorney general cannot be sued for authorizing a national security wiretap without a warrant, and lost. The high court ruled in Mitchell v. Forsyth that former Attorney General John Mitchell didn’t have automatic immunity from lawsuits stemming from his ordering of a warrantless wiretap in 1970. Mitchell had ordered eavesdropping on a group that the FBI believed was hatching a plot to kidnap national security adviser Henry Kissinger and to blow up heating tunnels in Washington DC.

Strip Searching a Ten Year Old?

The ad also says Alito “even voted to uphold the strip search of a ten year old girl.” We dealt with this in our Nov. 21 article reviewing an earlier ad by this group. Alito did file the sole dissent in Doe v. Groody, opposing a Pennsylvania couple’s right to sue local police officers who searched their home, themselves and their 10-year-old daughter for methamphetamines on the basis of a warrant that only specified a search of the premises. Police argued that they had applied for a warrant to search “all occupants” of the house, based on a tip from an informant claiming to have bought drugs at the house, and that they believed that the warrant permitted a search of the girl even if “occupants” weren’t specifically mentioned.

The Third Circuit Court of Appeals cleared the lawsuit to go forward – with Alito filing a dissenting opinion. He said that even though he had a “visceral dislike” of such intrusive searches, a “commonsense and realistic” reading of the warrant and the application gave the officers the impression that “all occupants” of the home were to be searched, and that they were acting within their professional duties in searching the wife and girl.

– by Justin Bank

 

Supporting Documents

View Alito Memo on Wiretapping 6.12.1984

Sources

Press Release, “IndependentCourt.Org Expands Ad Campaign on Alito Record To New States, Launches New Ads ,” Coalition for a Fair and Independent Judiciary, 6 Jan 2006.

Stephen Henderson and Howard Mintz, “Alito Wary of Individual Rights,” Knight Ridder News, 2 Dec 2005.

Adam Liptak and David E. Rosenbaum, “Domestic Surveillance: The Nomination; Alito Memo in ’84 Favored Immunity for Top Officials,” New York Times, 24 Dec 2005.