Borking Judge Alito; How Critics Twist the Truth

The Washington Times (Washington, DC), January 9, 2006 | Go to article overview

Borking Judge Alito; How Critics Twist the Truth


Byline: John Cornyn, SPECIAL TO THE WASHINGTON TIMES

With the battle over the nomination of Judge Samuel A. Alito Jr. to the Supreme Court set to take center stage on Monday, the American people have undoubtedly become familiar in past weeks with his critics - along with their criticisms, attacks and mischaracterizations.

If the best predictor of future behavior is past performance, then it is reasonable to expect that a host of rather predictable, knee-jerk criticisms - which have already been refuted with fact - will be leveled against this fine nominee in a misguided effort to discredit his qualifications.

As a preview of the coming debate, here is a guide to some of the charges one might expect to hear most often.

Judge Alito will be charged with supporting the ability of administration officials to order illegal wiretaps.

This charge will be leveled regardless of the fact that the case in question, Mitchell v. Forsyth, had nothing to do with the legality of wiretapping. In a 1984 memo, Judge Alito simply argued that the attorney general of the United States should not be held personally liable for money damages because there were other means to keep the activities of government officials in check.

Although the Reagan administration sought "absolute immunity" for the attorney general, Judge Alito advised the administration to seek only more limited "qualified immunity" instead, advice the administration ultimately rejected.

Judge Alito's recommendation of limited immunity was actually more moderate than the Carter administration's position in favor of absolute immunity in the very same case. In fact, President Carter's solicitor general was quoted in a Dec. 8, 1980 Associated Press story as saying: "absolute immunity is absolutely necessary" for both the president and his staff - a broader position than that argued by Judge Alito in 1984.

Despite these facts, however, expect to hear Judge Alito's record on the issue to be grossly distorted, depicting him as supportive of absolute presidential power and willing to justify warrantless wiretaps of the American people. There will be an attempt to create a nexus between the 1984 case and the recent NSA story.

Judge Alito will be charged with indifference to racially motivated pre-emptory challenges. …

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