January 11, 2006,
Here is the question that Judge Samuel Alito and his colleagues faced in the 2004 case of Doe v. Groody. Police had asked a magistrate for a warrant to search John Doe's house for drug paraphernalia and to search all occupants of the house. The magistrate issued a warrant that did not mention Doe's wife and daughter as search targets, apparently because the box on the form was too small to include them. The wife and ten-year-old daughter were nonetheless made to remove articles of clothing in front of female police officers. Doe sued for damages. So what a panel of judges including Alito had to decide was whether it was reasonable for the officers to read the warrant to incorporate the warrant application with respect to search targets.
It was not an easy question. Judge Michael Chertoff (now head of homeland security) and another judge found for Doe. Alito "share[d] the majority's visceral dislike" for the search of the girl, but read the precedents differently. He thought the officers should not be liable.
Senator Durbin put his own gloss on the case on the first day of Alito's confirmation hearings for the Supreme Court: "You were the only judge on your court who ruled to authorize a strip search of a ten-year-old girl." Whether strip searches of children are a good idea or are even permissible was not the issue before the court. The other judges did not suggest that such searches could never be conducted. (If the law dictated that result, drug dealers would have a free pass to use their children to conceal drugs.)
Durbin's comment was not the most outrageous statement of the hearings or even of his own speech (Durbin also clipped and introduced an Alito quote in a way that twisted its meaning, almost certainly deliberately). It was, rather, altogether typical of the tactics being used against Alito. None of the charges against Alito looks very strong when examined. But if the Democrats throw enough of them out, the charges might avoid scrutiny and a misleading picture of Alito might emerge.
Alito's record on presidential power has been the most frequent subject of distortions. He does not have much of a record on the question. But his critics are making him out as a champion of an unfettered, lawless presidency. Their case rests on stray scraps of paper that they misunderstand, or pretend to.
Alito has spoken in favor of a unitary executive which increases presidential power over the executive branch, but also presidential accountability for the results of executive-branch decisions. Support for such unity implies nothing about the balance of power among the branches. It offers no basis for any prediction about how Alito would rule on the wiretap controversy that has been in the news, should it (and he) reach the Supreme Court.
In a 1984 memo, Alito urged that the attorney general have at least qualified immunity from suits for money damages for authorizing wiretaps. The Carter administration had sought absolute immunity. Alito's view of immunity, again, implies nothing about his view of the extent of the president's constitutional authority to wiretap.
Alito has said that judges should look first to the text of a law to interpret it, and in many cases end the inquiry there. Some judges also consider a law's legislative history committee reports and the like. As a Reagan administration aide, Alito suggested that the president offer his interpretation of a law when signing it. Courts could then consider not only evidence about what the legislature thought it was enacting when it passed a bill, but evidence about what the president thought he was accepting when he made it law. In advocating the making of these statements, Alito was obviously not endorsing the contents of any particular statement e.g., the one Bush made when signing the recent anti-torture law. (Nor was he endorsing any of Clinton's signing statements.) Alito's support for signing statements tells us nothing about how he would rule on anything.
It is not clear that the Democratic party can make hay out of trying to restrict the president's ability to gather information about terrorists. Perhaps their persistence on this front is evidence of a heartfelt zeal that political considerations cannot diminish. But they have no legitimate quarrel with Alito here.
Alito's record and his testimony in the first days of the hearings suggest that he is, as advertised, a cautious, intelligent, and conservative jurist. He does not disdain the idea that judges can promote justice, but firmly believes that the way they do so is by following the law. He believes that precedent creates a "general presumption" but not an "inexorable command." He understands that particular cases may compel attention to foreign laws, but that foreign law is an unlikely source for illumination about the meaning of American constitutional provisions. He is right on all counts, and he ought to be confirmed.