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December 2, 2005
Senator Shameless

A former solicitor general lashed out at Chuck Schumer yesterday for his attack on Supreme Court nominee Samuel Alito based on a memo that should never have been released in the first place. Charles Fried, who represented the Reagan administration during Reagan's second term in office and who now teaches at Harvard Law School, said that the memo written by Alito not only provided nothing more than casual advice but also qualified as a privileged document that should have remained sealed:

The former U.S. solicitor general who authored a Reagan-era brief against the abortion ruling Roe v. Wade lashed out yesterday at one of the Democratic senators who will be voting on Judge Samuel Alito for saying the Supreme Court nominee should have told senators about work he did on the brief.

Charles Fried, a professor at Harvard Law School and President Reagan's lead attorney in front of the Supreme Court from 1985 to 1989, told The New York Sun that a 1985 memo in which a 35-year-old Samuel Alito offered him advice in arguing the administration's case against Roe v. Wade does not qualify as the kind of work a nominee should send to the Judiciary Committee for review. ...

"This is a real red herring because the solicitor general's office is a small one," Mr. Fried said. "We all helped each other and looked over each other's work. He had no formal role in writing that brief, and I can't imagine anything sillier than someone taking credit for a brief where that's the role they had." ...

Mr. Fried, who supports abortion rights, said that while he does not think memos from the solicitor general's office should be released, he also thinks Judge Alito was not being furtive in not mentioning his work on the 1985 abortion brief.

"I have never head of anyone who worked in the solicitor general's office who would list all the cases where they wrote memos," Mr. Fried said. "There are hundreds of these. It's just absurd. It's one of these typical cases, and I'm afraid Senator Schumer is guilty of this, that if you can't get someone on the merits, you bring up some phony lack of candor argument. He should be ashamed of himself, but he is shameless. And you can quote me on that."

It looks like the Democrats may try to Estradafy Alito, a silly proposition -- rather, a sillier proposition this time around than when they succeeded with it on Miguel Estrada and failed with John Roberts. In both of those cases, Democrats argued that they needed access to privileged records because neither candidate had an extensive track record as a jurist. Now those arguments have been exposed as unconconsionable intrusions on attorney-client prvilege in their demands of the same kind of release for Alito. This nominee has many years of experience on federal appellate courts and thousands of written opinions establishing his legitimacy and temperament. This attempt by Schumer and the other Democrats reveal a threadbare attempt to find any hook at all on which to drum up phony issues with which to unify the opposition to anyone named by the Bush administration to the bench.

And what of this memo, which relates to work that Alito never even performed himself? The Bush administration didn't authorize its release, and yet it found its way into the National Archives. The New York Sun's Brian Maguire suggests that the release came years ago during the Clinton years as a pre-emptive strike against anyone that a subsequent GOP administration might want to pick for just this position. Alito had been elevated to the federal appellate bench by Bush 41 and was seen as a rising star. Since they had the power to waive privilege at the time, they could easily have done so with a number of documents selectively culled to provide little caches of ammunition for hearings on Alito and others who worked in the White House Counsel or Solicitor General offices.

Schumer has decided once more to go fishing, probably using a map provided by his fellow Senator from New York and her husband to torpedo a well-qualified nominee on the basis of political partisanship. The faux outrage should generate real disgust at Schumer's tactics, not any serious debate on Alito's qualifications for the Supreme Court.

Speaking of shameless ... has Chuck explained how his staff got Michael Steele's credit history yet, and whether any other Republican candidate has to worry about other truly illegal acts against them by the Schumer-led DCCC?

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Posted by Ed Morrissey at December 2, 2005 6:02 AM

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