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.