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Alito and Abuse of Power
Published on Thursday, January 5, 2006 by the Progressive
Alito and Abuse of Power
by Ruth Conniff
The New York Times reported on Monday that Democrats are unlikely to filibuster Supreme Court nominee Samuel Alito, whose hearings begin next week. Democrats, while they generally oppose Alito, want to keep their powder dry and focus their efforts on opposing President Bush on other issues, including the Iraq War. One filibuster--over the Patriot Act--is enough for now. And, of course, there are the hearings coming up on the President's secret NSA spying program--the bombshell revelation of the recently ended Congressional session.

It's understandable that the Democrats, as a minority in Congress, feel they need to pick their battles. But giving Alito a pass, while trying to make the case that President Bush has abused his executive powers, is a mistake. Alito's nomination is part of the Bush Administration's assault on the balance of powers that act as a check on the executive branch. Members of Congress and Senators on the Judiciary Committee--Republicans and Democrats alike--should take the opportunity of this nomination to ask questions about Alito’s, and the President's, respect for our system of checks and balances, and to point out the pattern of abuse of executive authority that is seriously undermining Americans' privacy, freedom from overzealous law enforcement, and basic civil rights.

The ACLU has produced a report on Alito's record that speaks directly to these issues. In addition to his partisan conservatism and his opposition to reproductive rights, there is Alito's troubling record on the Fourth Amendment and his opposition to checks on both law enforcement and executive power.

On the Fourth Amendment, the ACLU notes that "Judge Alito has consistently voted to uphold questionable warrants." As a circuit court judge, Alito dissented from the rest of a panel in the decision Doe v. Groody, saying that the police were within their rights to strip-search a ten-year-old girl and her mother who were found in the home of a suspected drug dealer. The warrant in the case specified searching the suspect and his property, but not anyone else in the house. The majority of judges on the panel found that the warrant was clearly limited to the suspect, John Doe, and that the woman and her daughters' civil rights had been violated. Alito dissented, saying that the warrant authorized searching anyone on the property--though he "share[d] the majority's visceral dislike of the intrusive search of John Doe's young daughter." And, though neither the woman nor her daughter were named in the warrant, Alito further argued, even if it wasn't technically correct for the police to search the two plaintiffs, a reasonable police officer could have believed the search was authorized, and therefore the police were not liable.

In a series of other Fourth Amendment cases described in the ACLU report, Alito "consistently defers to the judgment and perceived good faith of law enforcement officers in executing warrants."

This is a particularly important issue right now, of course, as both the Patriot Act and the NSA spying program involve questions about the extent of the government's power to intrude on individuals' privacy and conduct searches in the name of security and law enforcement.

Interestingly, the ACLU notes that "in cases involving warrantless searches and seizures, however, Judge Alito has exhibited a higher regard for claimants' Fourth Amendment rights." In United States v. Kithcart, Judge Alito reversed the conviction of a felon in possession of a firearm on the grounds that the firearm was recovered during an unconstitutional arrest and subsequent search of the defendant's car.

What does Alito think of the warrantless searches conducted by the NSA? Does he agree with his colleague, another Republican appointee, who resigned in protest from the FISA court because of the Bush Administration's flagrant disregard for the warrant process?

What about the Patriot Act's provision allowing "sneak and peak" searches of people's homes, computers, and e-mail when they are not there, recently amended to require after-the-fact notice?

On the issue of executive power, the ACLU report notes a short introduction Alito made to a Federalist Society debate on the Independent Counsel statute. In the piece, "Introduction, After the Independent Counsel Decision, Is Separation of Powers Dead?" Alito calls the Supreme Court's decision finding the independent counsel statue constitutional, Morrison v. Olson, "stunning." "The concern raised by Judge Alito was that Morrison infringed on executive power and announced a standard permitting the Court to evaluate future encroachments on executive authority based solely on its 'subjective view.’ “

What will be Alito's view of executive power when he is on the Court? Americans deserve to know. This is a central concern--politically, at this particular moment, and constitutionally, for the long haul. The members of the Judiciary Committee owe us a close look at it.

Ruth Conniff covers national politics for The Progressive and is a voice of The Progressive on many TV and radio programs.

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