Published 1/9/06

Despite my agreement with Alito on many issues, I believe that he would be a dangerous addition to the court in already dangerous times for our constitutional system. Alito’s cases reveal an almost reflexive vote in favor of government, a preference based not on some overriding principle but an overriding party.

In my years as an academic and a litigator, I have rarely seen the equal of Alito’s bias in favor of the government. To put it bluntly, when it comes to reviewing government abuse, Samuel Alito is an empty robe.

Power grabs

This country is facing one of the most serious constitutional crises in its history. President Bush has claimed virtually absolute authority to act in contradiction of federal and international law. In the recently disclosed National Security Agency operation, he has claimed the right to order surveillance that may be a crime under federal law. Last week, it was disclosed that when Bush signed a prohibition on torture he had long opposed, he reserved the right to violate it if he deemed it in the nation’s interests.

The Framers gave our nation three branches in a system of checks and balances to prevent the concentration of power. The Republican-controlled Congress has remained largely passive in the face of these extreme assertions of power, leaving only the judicial branch as a check. Over the past five years, many federal judges — including Republican appointees — have stood against some of the president’s most extreme actions.

We are down to our last branch, and Alito would supply the final vote to shift the balance of power toward a president claiming the powers of a maximum leader. Alito’s writings and opinions show a jurist who is willing to yield tremendous authority to the government and offer little in terms of judicial review — views repeatedly rejected not only by his appellate colleagues but also by the U.S. Supreme Court.

As an assistant solicitor general, Alito strongly opposed the ruling of a court of appeals in the seminal case of Garner v. Tennessee. In that case, a police officer shot and killed an unarmed 15-year-old boy when he fled with $10 from a home. Alito supported the right of the officer to kill the boy for failing to stop when ordered, a position ultimately rejected by six members of the Supreme Court and decades of later decisions.

Likewise, Alito authored another memo that argued strongly in favor of giving immunity to officials who violate the rights of citizens — a position long rejected by the federal courts.

As he did as a Reagan administration attorney, Judge Alito often adopts standards so low that any government excuse can overcome any government abuse.

For example, in Doe v. Groody, Alito wrote a dissenting opinion arguing that police officers could strip-search a mother and her 10-year-old daughter, despite the fact that neither was named in the search warrant nor suspected of crimes. The majority opinion was authored by fellow Republican and conservative Judge Michael Chertoff (now serving as secretary of Homeland Security). Chertoff criticized Alito’s views as threatening to “transform the judicial officer into little more than the cliché ‘rubber stamp.’ ”

In Baker v. Monroe Township, Inez Baker and three of her children, all minors, were approaching the home of her son as a search was being conducted. Even though the warrant allowed a search of only the premises, the mother and her children were forced at gunpoint onto the ground. At least one of the teenagers, a 17-year-old boy, was searched, Baker’s purse was dumped out on the ground, and they were left handcuffed for as long as 25 minutes. Where the two Reagan appointees found “a very substantial invasion of the Bakers’ personal security,” Alito dissented and wanted to bar them from presenting their case to a jury, a view effectively gutting the warrant requirement of the Fourth Amendment.

Judicial bias

An independent judiciary means little if our judges are not independently minded. In criminal, immigration and other cases, Alito is one of the government’s most predictable votes on the federal bench. Though his supporters have attempted to portray this as merely a principle of judicial deference, it is a raw form of judicial bias.

The Alito vote might prove to be the single most important decision on the future of our constitutional system for decades to come. While I generally defer to presidents in their choices for the court, Samuel Alito is the wrong nominee at the wrong time for this country.